[2022] KESC 52 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Waihiga (Intended Interested Party) (Presidential Election Petition E005 of 2022) [2022] KESC 52 (KLR) (29 August 2022) (Ruling)

Neutral citation: [2022] KESC 52 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Presidential Election Petition E005 of 2022

MK Koome, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ

August 29, 2022

Between

Raila Odinga

1st Petitioner

Martha Wangari Karua

2nd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Wanyonyi Wafula Chebukati

2nd Respondent

Boya Molu

3rd Respondent

Prof.Abdi Yakub Guliye

4th Respondent

Juliana Whonge Cherera

5th Respondent

Justus Nyangaya

6th Respondent

Francis Wanderi

7th Respondent

Irene Massit

8th Respondent

William Samoei Ruto

9th Respondent

and

David Mwaure Waihiga

Intended Interested Party

(Being an application by David Mwaure Waihiga to be enjoined as an interested Party)

No person may be joined as an interested party in a presidential election petition

The applicant sought to be joined as an interested party in the presidential election petition. The court pointed out that rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017, provided that an application by any person as an interested party would not be allowed in a presidential election petition. The court further held that none of the intended interested party’s averments demonstrated the prejudice he would suffer if he was not enjoined and that the arguments the applicant proposed to make could be adequately argued by other parties in the petition.

Reported by Kakai Toili

Electoral Law- election petitions - presidential election petitions - parties in presidential election petitions - interested parties - whether one could be enjoined as an interested party in a presidential election petition - Supreme Court (Presidential Election Petition) Rules, 2017, rule 17A(4).

Brief facts The applicant filed the instant application seeking joinder as an interested party. The applicant was one of the four presidential candidates in the presidential election held on August 9, 2022 under the Agano Party Ticket. The applicant argued that he actively participated in the elections from the point of campaigns, casting of ballots, tallying and counting of ballot papers, up to the declaration at Bomas of Kenya and that the court needed to take his evidence into account to ensure that the final judgment of the court was based on available evidence.

Issues Whether one could be enjoined as an interested party in a presidential election petition.

Held

Rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017, provided that an application by any person as an interested party would not be allowed in a presidential election petition. None of the intended interested party’s averments demonstrated the prejudice he would suffer if he was not enjoined. The arguments the applicant proposed to make could be adequately argued by other parties in the petition.

Application dismissed.

Orders No orders as to costs.

Citations CasesNone referred toStatutesKenyaSupreme Court (Presidential Election Petition) Rules, 2017 (Act No 7 of 2011 Sub Leg) rules 2, 17, 17A(4) - (Interpreted)AdvocatesNone mentioned

Ruling

1. Upon perusing the notice of motion dated August 26, 2022 and filed on August 27, 2022, pursuant to rule 2 and 17 of the Supreme Court (Presidential Petition) Rules 2017, seeking joinder of David Waihiga, the party leader of Agano Party as interested party; and

2. Upon reading the supporting affidavit of Mr David Waihiga Mwaure, the party leader of Agano Party sworn on August 26, 2022; and

3. Upon perusing the grounds adduced by the applicant in support of the orders to be enjoined as interested party that is, he was one of the four presidential candidates in the presidential election held on August 9, 2022 under the Agano Party Ticket; he actively participated in the said elections from the point of campaigns, casting of ballots, tallying and counting of ballot papers, up to the declaration at Bomas of Kenya; and the court needs to take his evidence into account to ensure that the final judgment of the court is based on available evidence; and

4. Noting that no party has filed a response to the application; and

5. Considering the provisions of rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules 2017, which provide that an application by any person as an interested party shall not be allowed in a presidential election petition.

6. Furthermore, none of the intended interested party’s averments demonstrate the prejudice he will suffer if he was not enjoined. It is also our finding, that the arguments he proposes to make can be adequately argued by other parties in the petition.

7. For the foregoing reasons, the final orders of the court are as follows:

Orders:a.The application dated August 26, 2022 and filed on August 27, 2022 seeking joinder of David Waihiga Mwaure as interested party to this petition is hereby dismissed.b.There shall be no orders as to costs.

8. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF AUGUST 2022. ....................................................................M.K KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT......................................................................P.M MWILUDEPUTY CHIEF JUSTICE & DEPUTY PRESIDENT OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT.....................................................................M.K IBRAHIMJUSTICE OF THE SUPREME...................................................................S.C. WANJALAJUSTICE OF THE SUPREME......................................................................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT....................................................................I. LENAOLAJUSTICE OF THE SUPREME COURT....................................................................W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalRegistrar Supreme Court of Kenya