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Supreme CourtDismissedPresidential Election Petition E005, E002 & E004 of 2022 (Consolidated)

Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others

Supreme Court of Kenya
29 August 2022
590 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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IEBC members can be sued individually if their public statements are part of the grievance.

What this practically means

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The Supreme Court ruled that IEBC members who publicly disowned election results can be sued personally. Their statements are evidence of alleged failures, so a law protecting them from personal liability cannot be used to hide that evidence. The court also said the Attorney General can defend himself without help from other parties.

Executive summary

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This ruling by the Supreme Court of Kenya, delivered by a unanimous seven-judge bench presided over by Chief Justice M. K. Koome, dismissed three applications by William Samoei Ruto (the 9th respondent in consolidated presidential election petitions E002, E004, and E005). The applicant sought to strike out the 3rd to 8th respondents (members of the IEBC) from all three petitions, arguing that section 15 of the IEBC Act insulates them from personal liability for acts done in good faith. The court rejected this, holding that the 5th to 8th respondents' highly publicized press statement disowning the presidential election results brought them within the petitioners' grievance, and striking them out would suppress evidence. The court also dismissed the application to strike out the 13th respondent (the Attorney General) from Petition E002, noting that the Attorney General has ample capacity to defend himself and does not need the applicant's aid. The court made no order as to costs. The ruling establishes that IEBC members can be sued individually in election petitions where their public statements form part of the grievance, and that the Attorney General does not require another party's intervention to respond to joinder.

Questions the Court framed

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

  1. 1.Whether the 3rd to 8th respondents, being members of the 1st respondent (IEBC), can be sued in their individual capacity.
  2. 2.Whether the 13th respondent (Attorney General) should be struck out from Petition E002 for lack of role.

Key legal issues

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01

Whether the 3rd to 8th respondents (IEBC members) can be sued individually despite section 15 of the IEBC Act insulating them from personal liability for acts done in good faith.

Holding

The court held that the 5th to 8th respondents' public statement disowning the election results brings them within the grievance, and striking them out would suppress evidence, so section 15 cannot be used as a shield.

Reasoning

The court reasoned that the petitioners' claim is based on the respondents' public statement, which is evidence of the alleged failure by IEBC to perform its functions. Using section 15 to strike them out would suppress this evidence, which is not the purpose of the insulation provision.

02

Whether the 13th respondent (Attorney General) should be struck out from Petition E002 for lack of role.

Holding

The court held that the Attorney General has capacity to defend himself and does not need the applicant's aid to be struck out.

Reasoning

The court noted that the Attorney General is a senior state officer with ample capacity to respond to any joinder. The applicant's application to strike him out is unnecessary as the Attorney General can fend for himself.

Legal principles established

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  • IEBC members can be sued individually in election petitions if their public statements form part of the grievance.
  • Section 15 of the IEBC Act cannot be used to suppress evidence of a member's public statement.
  • The Attorney General has sufficient capacity to respond to joinder without needing another party's application.
  • A party cannot use a statutory shield to strike out a respondent when that respondent's conduct is central to the case.
  • Public statements by election officials can bring them within the scope of a presidential election petition.

Court orders

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  1. 1.The three applications by the 9th respondent dated August 27, 2022 and filed on August 28, 2022, are hereby dismissed.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Supreme Court (Presidential Election) Rules, 2017
Consolidated with
Petition E002 of 2022, Petition E004 of 2022, Petition E005 of 2022

Relief refused

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Striking out the names of the 3rd to 8th respondents from Petitions E002, E004, and E005.

The 5th to 8th respondents' public statement disowning the election results brings them within the grievance, and striking them out would suppress evidence.

Striking out the name of the 13th respondent (Attorney General) from Petition E002.

The Attorney General has capacity to defend himself and does not need the applicant's aid.

Costs

No Orders 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.

To use section 15 of the IEBC Act, as a shield, would be tantamount to suppressing evidence by the applicant.
p. 3 Striking out parties - IEBC members
As the Attorney General, he does not need the aid of the 9th respondent to accomplish such a routine task.
p. 3 Striking out parties - Attorney General
The three applications by the 9th respondent dated August 27, 2022 and filed on August 28, 2022, are hereby dismissed.
p. 3 Final orders

Key timeline

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2022-08-27
William Samoei Ruto files application to strike out IEBC members and Attorney General from election petitions.
2022-08-28
Application filed in court.
2022
Supreme Court dismisses the applications, allowing IEBC members and Attorney General to remain as parties.

Practical implications

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For lawyers

Pleadings must include public statements

When representing a client in a presidential election petition, include any public statements by IEBC members that contradict official results. The court will not strike them out under section 15 of the IEBC Act if those statements are evidence of the grievance. Draft pleadings to tie each member's conduct to the petition's core allegations.

For businesses

Monitor electoral integrity risks

Businesses that rely on stable electoral outcomes should note that IEBC members can be held individually accountable for public statements. This ruling increases transparency in election disputes. Companies with political exposure should track such litigation as it may affect the final election result and business environment.

For individuals

Your right to challenge election results

If you believe an election was flawed, you can name IEBC members who made public statements against the results. The court will not automatically remove them from the case. This ruling preserves your ability to present all relevant evidence, including statements by officials, in a presidential election petition.

Frequently asked questions

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Can IEBC members be sued personally in Kenya?+

Yes, if they make public statements that form part of a grievance in a presidential election petition. The Supreme Court ruled that section 15 of the IEBC Act does not shield them from being sued individually when their statements are evidence of alleged failures.

What is section 15 of the IEBC Act in Kenya?+

Section 15 of the IEBC Act protects IEBC members from personal liability for acts done in good faith. However, the Supreme Court held that this provision cannot be used to suppress evidence of a member's public statement that contradicts election results.

Can the Attorney General be removed from a case in Kenya without his consent?+

No. The Supreme Court ruled that the Attorney General, as a senior state officer, has sufficient capacity to respond to joinder. Another party cannot apply to strike him out; he can defend himself if needed.

What does the Supreme Court ruling mean for election petitions in Kenya?+

It means petitioners can include IEBC members as individual respondents if those members made public statements about the election. The court will not strike them out just because of the IEBC Act's immunity provision. This allows more evidence to be presented.

Cite this brief

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Cite this brief

Caselaw, "Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others", Case Analysis (2022). Presidential Election Petition E005, E002 & E004 of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/43/eng@2022-08-29

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