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Supreme CourtPartially AllowedPetition 5, 3 & 4 of 2013 (Consolidated)

Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated))

Supreme Court of Kenya
26 March 2013
2,916 words in judgment
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The bottom line

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Court expunged Raila Odinga's 839-page affidavit filed without leave in presidential election petition.

What this practically means

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The Supreme Court removed a massive affidavit filed by Raila Odinga because he did not ask for permission first. The court said parties cannot just add new evidence whenever they want, especially in time-sensitive election cases. Allowing the 839 pages would have made it unfair for the other side to respond in time. The ruling emphasizes that court rules must be followed strictly.

Executive summary

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This interlocutory ruling by the Supreme Court of Kenya, delivered on March 26, 2013, and corrected on April 3, 2013, addressed objections by the respondents in a consolidated presidential election petition challenging the election of President Uhuru Kenyatta. The petitioner, Raila Odinga, had filed a lengthy affidavit in reply on March 23, 2013, without prior leave of the court, which contained seven separate affidavits totaling 839 pages and introduced new allegations in 152 electoral areas. The respondents argued that this was prejudicial, violated the strict 14-day timeline for presidential election petitions, and amounted to an abuse of process. The court held that further affidavits or additional evidence under rule 10(f) of the Supreme Court (Presidential Election Petition) Rules 2013 are not a matter of right but require a specific application and the court's discretion. It found that the new material was so substantial that it would change the character of the petition and make it impossible for the respondents to respond within the remaining time, causing a miscarriage of justice. Consequently, the court expunged the petitioner's affidavit and all its annexures from the record and ordered the petitioner to bear the costs of the objection proceedings. The ruling also corrected an accidental slip regarding the 14-day period for filing the petition. The judgment is unanimous and binds lower courts on the strict procedural requirements for filing further evidence in time-constrained election petitions.

Questions the Court framed

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

  1. 1.Whether the petitioner's affidavit in reply filed on March 23, 2013, together with its annexures, should be expunged from the court record.
  2. 2.Whether the court should exercise its discretion under rule 10(f) of the Supreme Court (Presidential Election Petition) Rules 2013 to allow further affidavits or additional evidence.

Key legal issues

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01

Whether the petitioner's affidavit in reply, filed without leave of the court, should be expunged.

Holding

The court held that the affidavit and its annexures must be expunged because they were filed without leave, introduced substantial new material that would change the character of the petition, and would prejudice the respondents' ability to respond within the tight timelines.

Reasoning

The court noted that the Supreme Court Act and Rules do not provide for further affidavits as of right; they may only be allowed by the court upon application under rule 10(f). The petitioner filed seven affidavits totaling 839 pages without seeking leave, introducing new electoral areas and allegations. The remaining time before trial was inadequate for the respondents to respond. Allowing them would cause a miscarriage of justice.

02

Whether the court should exercise its discretion to allow further affidavits or additional evidence under rule 10(f) of the Supreme Court (Presidential Election Petition) Rules 2013.

Holding

The court held that such discretion must be exercised sparingly, and only upon a specific application. The nature, context, and extent of the new material must be considered; if it is substantial and would make it impossible for the other party to respond, leave should be refused.

Reasoning

The court emphasized the strict 14-day timeline for presidential election petitions, the need for a level playing field, and the mandatory nature of compliance with rules. The petitioner's failure to apply for leave before filing, and the massive volume of new evidence, justified refusal.

Legal principles established

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  • Further affidavits or additional evidence require a specific application to the court; they are not a matter of right.
  • If new material is substantial and makes it difficult for the other party to respond, the court must act with caution and may refuse leave.
  • Affidavits filed without leave can be expunged from the record if they prejudice the other party.
  • Strict timelines in presidential election petitions must be respected to ensure a fair hearing.
  • The court's discretion under rule 10(f) must be exercised sparingly, considering the nature and extent of new evidence.
  • Prejudice to the opposing party is a key factor in deciding whether to allow further affidavits.

Court orders

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  1. 1.The petitioner's affidavit sworn on March 22, 2013 together with all its annexures, which include the other affidavits, are expunged from the court records.
  2. 2.The petitioner shall bear the costs of the objection proceedings relating to the affidavits in reply.
  3. 3.The ruling dated March 26, 2013 is amended by substituting the words 'the period for filing of a presidential election is only 14 days from the time the results are declared' with 'the period for filing of the petition'.

The bench

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

majority

Wrote the judgment

majority
majority
majority
Smokin Charles Wanjala
SC WanjalaSCJ
Currently serving
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Njoki Susanna Ndungu
NS NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Article 140 of the Constitution and the Supreme Court (Presidential Election Petition) Rules 2013
Consolidated with
Petition No 3 of 2013

Relief refused

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The respondents' request to have the petitioner's affidavit in reply and its annexures struck out entirely without consideration

The court considered the objections and submissions, and while it expunged the affidavits, it did so after a full hearing and not summarily.

Costs

The petitioner shall bear the costs of the objection proceedings relating to the affidavits in reply.

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.

We hold that if we allow the 7 affidavits to remain on record, the same will be prejudicial to the respondents. This will amount to a miscarriage of justice, and we cannot allow it in the circumstances.
p. 8 Prejudice and miscarriage of justice from late filing of substantial evidence
the court can only exercise its powers and/or discretion to allow further affidavits or additional evidence if it is specifically applied for, and may allow or refuse such an application. It is not a matter of right.
p. 7 Discretion to allow further affidavits requires application
As a result of the forgoing, we hereby expunge from the court records the petitioner’s affidavit sworn on March 22, 2013 together with all its annexures, which include the other affidavits. The petitioner shall bear the costs of the objection proceedings relating to the affidavits in reply.
p. 9 Final orders expunging affidavits and costs
In exercise of our inherent jurisdiction, we hereby order the amendment of the said ruling by substituting the aforesaid underlined words with the following words: ‘… of filing of the petition.’
p. 9 Correction of accidental slip in ruling

Issues in the judgment

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minor

The judgment contains an accidental slip corrected by a subsequent order: the original ruling stated 'the period for filing of a presidential election is only 14 days from the time the results are declared', which was amended to 'the period for filing of the petition'.

Key timeline

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2013-03-22
Raila Odinga swore an affidavit in reply in the presidential election petition.
2013-03-23
The affidavit, with seven annexures totaling 839 pages, was filed without prior leave of the court.
2013-03-26
Supreme Court ruled that the affidavit must be expunged for being filed without leave and causing prejudice.
2013-04-03
Court corrected a slip in the ruling regarding the 14-day period for filing the petition.

Practical implications

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For lawyers

Strict compliance with procedural rules

Never file further affidavits or additional evidence in a presidential election petition without first obtaining leave from the court. The Supreme Court will expunge such filings if they are substantial and prejudice the other side. Always apply under rule 10(f) and justify why the evidence could not have been filed earlier.

For businesses

Respect court deadlines and procedures

In any legal dispute, especially those with tight timelines, ensure all filings are made with proper court permission. Springing large volumes of new evidence on the other party without leave can backfire and lead to your evidence being thrown out, wasting time and money.

For individuals

Fairness in court requires following rules

If you are involved in a court case, you cannot simply add new evidence whenever you want. You must ask the court for permission first. The court will consider whether the new evidence is fair to the other side and whether there is enough time for them to respond. Ignoring this can result in your evidence being rejected.

Frequently asked questions

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Can I file additional evidence without court permission in Kenya?+

No, you must first apply for leave from the court. The Supreme Court in Raila Odinga v IEBC ruled that further affidavits or additional evidence are not a matter of right. Filing without permission can lead to the evidence being expunged.

What happens if I file an affidavit without leave in a Kenyan election petition?+

The court can order the affidavit and its annexures to be removed from the record. In the Raila Odinga case, the Supreme Court expunged a 839-page affidavit because it was filed without leave and would prejudice the other side due to tight deadlines.

Why was Raila Odinga's affidavit expunged by the Supreme Court of Kenya?+

The affidavit was filed without prior court permission, introduced massive new evidence (839 pages), and would have made it impossible for the respondents to respond within the 14-day timeline for presidential election petitions. The court found this would cause a miscarriage of justice.

What is the time limit for filing a presidential election petition in Kenya?+

The petition must be filed within 14 days from the date the election results are declared. This strict timeline was confirmed by the Supreme Court in the Raila Odinga case, and the court corrected an earlier slip to make this clear.

Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated))", Case Analysis (2013). Petition 5, 3 & 4 of 2013 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/1/eng@2013-03-26

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