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Supreme CourtDismissedPetition 2 of 2013

Aluochier v Independent Electoral and Boundaries Commission (IEBC) & 19 others

Supreme Court of Kenya
3 May 2013
3,352 words in judgment
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·~13 min to read original · ~4 min brief

The bottom line

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Challenges to presidential nominations must wait until after election results are declared.

What this practically means

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The Supreme Court ruled it cannot hear disputes about presidential candidate nominations before an election. Such challenges can only be filed after election results are announced, as specified by the Constitution and Court Rules. The Court said its Rules override general principles from earlier Advisory Opinions. This means anyone wanting to challenge a candidate's nomination must wait until after the vote.

Executive summary

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This was a preliminary objection ruling in a petition filed 27 days before the 2013 general elections. The petitioner, appearing in person, challenged the validity of nominations and approvals made by the IEBC for Presidential candidates. The respondents raised a preliminary objection that the Supreme Court lacked jurisdiction to entertain the petition. The Court considered three questions: whether it had jurisdiction, whether there was a time-frame constraint on its exclusive original jurisdiction, and whether the petitioner had prematurely invoked that jurisdiction. The Court held that its exclusive original jurisdiction under Article 163(3)(a) to hear Presidential election disputes crystallizes only after the declaration of election results as provided in Article 140(1). The Supreme Court (Presidential Election Petition) Rules, 2013, made pursuant to Article 163(8), specifically provide that a petition may only be filed after the declaration of the outcome, and Rule 12(2) expressly includes the validity of nomination of a presidential candidate as a ground that may be raised at that stage. The Court rejected the petitioner's argument that the Advisory Opinion No. 2 of 2012 could override the specific Rules, holding that the Rules constitute a directly-operative code while the Advisory Opinion bears only broad principle. The preliminary objection was upheld, the Court declared itself without jurisdiction, and made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Does the Supreme Court have jurisdiction in this matter?
  2. 2.Is there a time-frame constraint to the Supreme Court’s exercise of its exclusive original jurisdiction, in the case of Presidential-election matters – given the terms of Articles 163(3)(a) and 140 of the Constitution?
  3. 3.Did the petitioner prematurely invoke the Supreme Court’s exclusive original jurisdiction?

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear a pre-election petition challenging the validity of Presidential candidate nominations before the declaration of election results.

Holding

The Supreme Court lacks jurisdiction to entertain such a petition before the declaration of Presidential election results.

Reasoning

The Court held that Article 163(3)(a) read with Article 140(1) of the Constitution confers exclusive original jurisdiction only after the declaration of the President-elect. The Supreme Court (Presidential Election Petition) Rules, 2013, made pursuant to Article 163(8), specifically provide that a Presidential-election petition is to be filed only after the declaration of the outcome. Rule 12(2) of those Rules expressly includes the validity of nomination of a presidential candidate as a ground that may be raised, but only after the election results are declared. The petitioner's reliance on the broader principles of the Advisory Opinion No. 2 of 2012 could not override the specific, directly-operative Rules.

02

Whether the Supreme Court's Advisory Opinion No. 2 of 2012 can be used as a basis for invoking the Court's jurisdiction in place of the Supreme Court (Presidential Election Petition) Rules, 2013.

Holding

A party cannot elect between the broader principles in an Advisory Opinion and the formal Rules of the Supreme Court; the prescribed Rules are for immediate and unexceptionable application.

Reasoning

The Court found that the Advisory Opinion bears broad principle, while the Rules constitute a directly-operative code in specific terms. The petitioner's attempt to rely on the Advisory Opinion as an excuse from compliance with the Rules was a departure from legal principle and defeated his cause at the preliminary stage. The Court agreed with counsel that the principles in the Advisory Opinion had been restructured into the functioning Rules.

Legal principles established

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  • The Supreme Court's power to hear presidential election disputes only begins after the winner is declared.
  • Court Rules specifically made for presidential petitions take priority over broader Advisory Opinions.
  • A pre-election challenge to a candidate's nomination is filed too early and will be dismissed.
  • Parliament can set time limits on when the Supreme Court can hear election cases.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.This Court declares itself to be without jurisdiction in this matter
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Jurisdiction invoked
Article 163(3)(a) of the Constitution of Kenya, 2010

Relief refused

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Petition challenging the validity of nominations and approvals made by IEBC in respect of candidature for the office of President

The Court lacked jurisdiction at this stage; the petition was filed prematurely before the declaration of Presidential election results.

Costs

We shall make no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Supreme Court, at this stage, lacks jurisdiction to entertain the petition which we hereby decline to hear
p. 5 Jurisdiction of the Supreme Court
the law has defined the time of declaration of Presidential results as the operative moment in the exercise of this jurisdiction
p. 10 Timing of Supreme Court's original jurisdiction
the prescribed Rules of the Supreme Court, made by virtue of the Constitution, constitute a directly-operative code in specific terms, the Advisory Opinion is not similarly structured
p. 10 Supremacy of Rules over Advisory Opinion
The preliminary objection is upheld, and this Court declares itself to be without jurisdiction in this matter. We shall make no order as to costs.
p. 10 Final orders

Key timeline

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2013-02-07
Petitioner files case challenging IEBC nomination of presidential candidates, 27 days before the election.
2013-02-11
Supreme Court hears preliminary objection on jurisdiction.
2013-02-15
Court upholds objection, rules it lacks jurisdiction to hear pre-election nomination disputes.

Practical implications

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For lawyers

Timing is key in election petitions

Under Article 163(3)(a) and the 2013 Rules, you cannot file a presidential election petition before the winner is declared. Advise clients with nomination grievances to document evidence and prepare for filing within the 7-day window after declaration under Article 140(1). Relying on Advisory Opinion broad principles will not excuse non-compliance with specific procedural Rules.

For businesses

Election disputes have strict deadlines

If your business or trade association has concerns about a presidential candidate's eligibility, you cannot challenge nominations before the election. All disputes must wait until after results are declared. Plan for post-election legal action within the constitutional timeframe. Any pre-election legal action will be dismissed for lack of jurisdiction.

For individuals

You cannot challenge candidates pre-election

If you believe a presidential candidate was wrongly nominated, you must wait until after the election results are announced to bring your case to the Supreme Court. Filing early wastes time and money. The Court has no power to hear you before the vote. Keep your evidence ready and file only after the winner is declared.

Frequently asked questions

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Can I challenge a presidential candidate's nomination before Election Day in Kenya?+

No. The Supreme Court ruled it has no jurisdiction to hear pre-election challenges to presidential nominations. Such disputes can only be filed after election results are declared, within the timeframe set by Article 140(1) of the Constitution.

What is the Supreme Court's role in presidential election disputes in Kenya?+

The Supreme Court has exclusive original jurisdiction to hear disputes about presidential elections, but only after the results are declared. It cannot intervene before the election. The Court's Rules under Article 163(8) specify the proper timing and procedure.

Can I use a Supreme Court Advisory Opinion to bypass election petition rules in Kenya?+

No. The Court held that Advisory Opinions provide broad principles, not specific rules. The Supreme Court (Presidential Election Petition) Rules, 2013 are a directly-operative code that must be followed. You cannot choose between an Advisory Opinion and the Rules.

What happens if I file a presidential election petition too early in Kenya?+

Your petition will be dismissed because the Supreme Court lacks jurisdiction before the election results are declared. The Court will uphold a preliminary objection and strike out the case. You will have to refile after the correct time, but must then act within the constitutional deadline.

Cite this brief

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Cite this brief

Caselaw, "Aluochier v Independent Electoral and Boundaries Commission (IEBC) & 19 others", Case Analysis (2013). Petition 2 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/13/eng@2013-05-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.