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Supreme CourtOtherElection Petition 3 of 2017

Institute for Democratic Governance v Odinga & 4 others; Independent Electoral and Boundaries Commission & another (Interested Parties)

Supreme Court of Kenya
14 November 2017
315 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Supreme Court separates non-urgent election petition from time-bound presidential election challenges.

What this practically means

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The Supreme Court ruled that a petition filed under Article 163(3) of the Constitution does not have the same urgent deadline as petitions challenging a presidential election. Because this petition did not question the election of the President-elect, it could not be heard alongside the time-sensitive presidential election petitions. The court removed it from the hearing schedule and postponed decisions on joining a party and a jurisdictional objection.

Executive summary

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This is a brief procedural ruling by the Supreme Court of Kenya in Petition No. 3 of 2017. The Jubilee Party had applied to be joined as an interested party. During the hearing of that application, the respondents raised a preliminary objection challenging the court's jurisdiction to entertain the petition. The court noted that it was simultaneously scheduled to hear two petitions under Article 140 of the Constitution challenging the election of President Uhuru Kenyatta and Deputy President William Ruto, which are time-bound and must be determined within 14 days. The present petition, brought under Article 163(3) of the Constitution, does not challenge the presidential election and is not subject to the same time constraints. Consequently, the court ordered that this petition be taken out of the cause list for the period between November 14 and December 13, 2017, and deferred its ruling on both the joinder application and the preliminary objection to a date to be given on notice. No substantive issues were determined, and no costs were awarded.

Questions the Court framed

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

  1. 1.Whether the petition should be heard along with Petition Nos. 2 and 4 under Article 140 of the Constitution.
  2. 2.Whether the court has jurisdiction to entertain the petition.

Key legal issues

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01

Whether this petition under Article 163(3) should be heard alongside petitions under Article 140 of the Constitution.

Holding

The petition under Article 163(3) is not a time-bound petition under Article 140 and cannot be heard together with Article 140 petitions.

Reasoning

The court noted that petitions under Article 140 are time-bound and must be determined within 14 days. This petition, brought under Article 163(3), does not challenge the election of the President-elect and is not subject to the same time constraints. Therefore, it cannot be heard along with the Article 140 petitions scheduled for hearing between November 14 and December 13, 2017.

Legal principles established

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  • Petitions under Article 163(3) are not subject to the 14-day deadline for presidential election petitions under Article 140.
  • Courts can separate cases with different legal bases and time constraints to ensure efficient justice.
  • A petition that does not challenge the presidential election outcome cannot be consolidated with time-bound election petitions.
  • Procedural rulings on joinder and jurisdiction can be deferred without affecting the main case's timeline.

Court orders

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  1. 1.The petition is taken out of the cause list of matters to be heard between today and December 13, 2017.
  2. 2.Ruling on the application to join Jubilee Party and the preliminary objection is deferred to a date to be given on notice.

The bench

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

majority
Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(3) of the Constitution

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.

This petition does not challenge the election of the President elect. It is brought under article 163(3) of the Constitution. It is therefore not a time bound petition under article 140 of the Constitution that we must hear within 14 days.
p. 3 Jurisdiction and nature of petition under Article 163(3)
It is accordingly taken out of the cause list of matters to be heard between today and the December 13, 2017.
p. 3 Final orders
We do not even have time to rule on the said application to join Jubilee or on the preliminary objection raised by the respondents. In the circumstances we defer our ruling to a date to be given on notice.
p. 3 Deferral of ruling

Key timeline

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2017-11-14
Supreme Court scheduled to hear two time-bound petitions under Article 140 challenging the presidential election.
2017-11-14
Jubilee Party applied to join Petition No. 3 of 2017 as an interested party.
2017-11-14
Respondents raised a preliminary objection challenging the court's jurisdiction over Petition No. 3.
2017-11-14
Court ordered Petition No. 3 removed from the cause list until after December 13, 2017.
2017-11-14
Ruling on joinder and preliminary objection deferred to a date to be given on notice.

Practical implications

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For lawyers

Separate case management for Article 163(3) petitions

When filing a constitutional petition under Article 163(3) that does not challenge a presidential election, ensure you do not schedule it alongside Article 140 petitions. The court will not hear them together due to different time limits. Prepare separate timelines and avoid relying on the 14-day urgency. This ruling clarifies that procedural objections and joinder applications can be postponed without derailing the main case.

For businesses

Election-related litigation may not be urgent

If your business is involved in election-related disputes that do not directly challenge the presidential outcome, do not assume they will be fast-tracked. The court treats such cases under standard timelines. Plan for longer resolution periods and avoid expecting expedited hearings. This ruling helps you budget for legal costs and manage stakeholder expectations during election periods.

For individuals

Know your petition's legal basis for timelines

If you file a petition about an election issue that does not question the President's election, it will not be heard urgently like a presidential election challenge. You must follow normal court schedules. Check whether your case falls under Article 163(3) or Article 140 to understand deadlines. This prevents frustration and helps you prepare for a longer legal process.

Frequently asked questions

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What is the difference between Article 163(3) and Article 140 petitions in Kenya?+

Article 140 petitions challenge the election of the President and must be heard and decided within 14 days. Article 163(3) petitions deal with other constitutional matters and are not time-bound. The Supreme Court will not hear them together because of these different deadlines.

Can I join a case as an interested party in Kenya's Supreme Court?+

Yes, you can apply to join as an interested party, but the court may defer ruling on your application if it is raised alongside a jurisdictional objection. In this case, the court postponed both decisions to a later date, so you may need to wait for a separate hearing.

What happens if a preliminary objection is raised in a Kenyan election petition?+

The court can defer ruling on the objection to a later date, especially if the main case is not urgent. In this ruling, the court postponed the objection and removed the case from the immediate hearing list, allowing time for other urgent matters first.

Does the Supreme Court of Kenya always hear election petitions quickly?+

Only petitions under Article 140 that challenge the presidential election are time-bound and must be heard within 14 days. Other election-related petitions under Article 163(3) follow normal court schedules and may take longer. This ruling confirms that distinction.

Cite this brief

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Cite this brief

Caselaw, "Institute for Democratic Governance v Odinga & 4 others; Independent Electoral and Boundaries Commission & another (Interested Parties)", Case Analysis (2017). Election Petition 3 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/8/eng@2017-11-14

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