Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Attorney General (Intended Amicus Curiae)
The bottom line
#Supreme Court allowed Attorney General as amicus but removed a question where he was a party.
What this practically means
#The Supreme Court allowed Kenya's Attorney General to act as a friend of the court in a presidential election petition, but removed one question from his brief. The Attorney General had been a party in a previous case on that same issue. Letting him address it would risk unfairness to the other parties. The court kept the other questions because they were pure legal issues the Attorney General could help clarify.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Attorney General should be enjoined as amicus curiae in the presidential election petition
- 2.What issues the Attorney General should be permitted to address in the amicus brief
Key legal issues
#Whether the Attorney General should be admitted as amicus curiae in a presidential election petition despite objections of partisanship.
The Attorney General was admitted as amicus curiae, but the specific issue relating to the Maina Kiai case was expunged from the amicus brief because the Attorney General had been a party to that case and addressing it would risk prejudice.
The court acknowledged the Attorney General's constitutional and statutory role as amicus under Article 156(5) and the Office of the Attorney General Act, and found that the petition raised issues of great public interest. However, the court applied the Mumo Matemu principles, particularly that where a proposed amicus appears partisan on an issue, the court will consider objections. Since the Attorney General was the 4th respondent in the Maina Kiai case and opposed that petition, permitting him to address its effect would allow re-litigation of a matter where he took a clear position, risking prejudice to the parties. Due to time constraints, the court expunged that specific issue rather than rejecting the entire application.
Legal principles established
#- An amicus curiae must be neutral and not partisan on any issue.
- If a proposed amicus was an active party in prior adversarial proceedings on an issue, they cannot address that same issue as amicus.
- Permitting a former party to re-litigate as amicus risks prejudice and undermines justice being seen to be done.
- The court may expunge specific issues from an amicus brief to avoid prejudice.
- The Attorney General can act as amicus on pure questions of law even if they participated in related law reform.
Court orders
#- 1.The application is hereby allowed with orders that the question: 'What was the effect of the jurisprudence enunciated by the Court of Appeal in the case of IEBC v Maina Kiai & 4 others (Civil Appeal No 105 of 2017) on how IEBC conducted the presidential election in issue?' be expunged from the amicus brief.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under Article 163(3)(a) of the Constitution (presidential election petition)
Quotable passages
#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 application is hereby allowed with orders that the question: 'What was the effect of the jurisprudence enunciated by the Court of Appeal in the case of IEBC v Maina Kiai & 4 others (Civil Appeal No 105 of 2017) on how IEBC conducted the presidential election in issue?' be expunged from the amicus brief.
Permitting the Attorney General to address us on this issue, would, with respect, be allowing the Attorney General to re-litigate issues in a matter to which he was an active party to the adversarial proceedings and in which he preferred a clear position for or against a party which is also before this court, directly or by association.
This bears the risk of prejudicing the party (ies) concerned negating the core principle that justice must not only be done, but be seen to be done.
The Attorney General has satisfied this court, by the very nature of the proceedings, that issues of public interest are involved.
Key timeline
#Practical implications
#Amicus applications need careful issue framing
When seeking amicus status, ensure the proposed issues are not ones where your client was previously an adversarial party. The court will expunge such issues to avoid re-litigation and prejudice. Frame your brief to cover only pure questions of law where you have no prior partisan position.
Neutrality of amicus protects fairness
Businesses involved in major litigation should support the principle that amicus curiae must be neutral. If a party with a prior adversarial role is allowed to appear as a friend of the court, it could tilt the scales unfairly. This ruling reinforces that the court will guard against such bias.
Fairness in high-stakes elections
Every citizen has a right to a fair hearing. The Supreme Court's decision to remove a question from the Attorney General's brief shows it will not allow anyone with a past stake in an issue to influence the court as a 'neutral' friend. This protects the integrity of election petitions.
Frequently asked questions
#What is an amicus curiae in Kenya?+
An amicus curiae (friend of the court) is a person or organization allowed to assist the court by providing information or arguments on legal issues. In Kenya, the Attorney General often acts as amicus in cases of great public interest, like election petitions.
Can the Attorney General be amicus in a Kenyan election petition?+
Yes, the Attorney General can be amicus curiae in a presidential election petition if they are neutral. However, if they were a party to a prior case on the same issue, the court may prevent them from addressing that issue to avoid bias and ensure fairness.
Why did the Supreme Court remove a question from the Attorney General's brief in the Raila Odinga petition?+
The question was about the effect of the Maina Kiai case on the 2017 election. The Attorney General had been a party to that case and took a clear position. The court removed it to prevent re-litigation and to uphold the principle that justice must be seen to be done.
What does the Maina Kiai case have to do with the 2017 Kenya presidential election petition?+
The Maina Kiai case was about how the electoral commission conducted elections. The Attorney General was a respondent in that case. In the 2017 petition, he wanted to argue its effect, but the Supreme Court said he was too partisan on that issue and removed it from his brief.
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Attorney General (Intended Amicus Curiae)", Case Analysis (2017). Presidential Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/36/eng@2017-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.