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Supreme CourtDismissedPresidential Election Petition 1 of 2017

Odinga & another v Independent Electoral and Boundaries Commission & 2 others

Supreme Court of Kenya
27 August 2017
1,070 words in judgment
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The bottom line

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Court refused to strike out entire case for late service of just a few hours.

What this practically means

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The Supreme Court dismissed an application to strike out documents served a few hours late. The court said throwing out the entire case at a preliminary stage would be too drastic. It balanced the scales of justice, noting the delay was minimal and no prejudice was shown. The ruling shows courts prefer deciding cases on their merits rather than technicalities.

Executive summary

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This is a ruling on a notice of motion dated August 26, 2017, filed by the petitioner (Raila Odinga & 5 others) seeking to strike out and expunge from the court record numerous documents filed by the 1st, 2nd, and 3rd respondents in a presidential election petition. The ground was that the documents were served out of time, contrary to regulation 11(1) of the Supreme Court (Presidential Election) Regulations, which requires a respondent to file and serve a response within four days of service of the petition. The petitioner argued that time was of the essence and that the delay prejudiced their right to reply. The respondents countered that the delay was minimal (a few hours) due to the petitioner's advocate's office being closed at night, and that no prejudice was suffered. The court, after considering submissions, dismissed the application. It reasoned that granting it would dispose of the respondents' entire case at a preliminary stage, a drastic consequence not justified when balancing the scales of justice. The court also noted it had dismissed similar applications by the respondents. Costs were ordered to abide the cause. The ruling was delivered unanimously by a seven-judge bench of the Supreme Court on August 27, 2017.

Questions the Court framed

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

  1. 1.Whether the documents filed by the 1st, 2nd and 3rd respondents, served out of time, should be struck out and/or expunged from the court record.

Key legal issues

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01

Whether documents served out of time under regulation 11(1) of the Supreme Court (Presidential Election) Regulations should be struck out.

Holding

The court dismissed the application to strike out the documents, holding that granting it would dispose of the respondents' entire case at a preliminary stage, which was not justified.

Reasoning

The court considered the application's drastic consequence—disposing of the respondents' entire case—and weighed it against the interests of justice. It noted that the delay in service was only a few hours and that the respondents had made efforts to serve. The court also referenced its earlier rulings dismissing similar applications by the respondents, indicating a consistent approach to avoid preliminary disposals.

Legal principles established

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  • Courts will not strike out an entire case for minor procedural delays if it disposes of the case prematurely.
  • The scales of justice require balancing procedural compliance against substantive justice.
  • A delay of a few hours in service may be excused if no prejudice is shown.
  • Courts should avoid drastic preliminary orders that end a case without hearing its merits.
  • Consistency in judicial approach: similar applications by other parties were also dismissed.

Court orders

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  1. 1.The notice of motion dated August 26, 2017, is hereby dismissed.
  2. 2.Costs to abide the Cause.

The bench

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
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
Supreme Court (Presidential Election) Regulations, regulation 11(1)

Relief refused

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Striking out and/or expunging from the court record documents filed by the 1st, 2nd and 3rd respondents

The court found that granting the application would dispose of the entire case of the respondents at a preliminary stage, which could not be justified in the interests of justice.

Costs

Costs to abide the Cause.

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 nature of this application is such that were it to be granted, it would dispose of the entire case of the 1st, 2nd and 3rd respondents at this preliminary stage. Such a drastic consequence in our view cannot be justified if the scales of justice are weighed in favour of all the parties to this petition.
p. 4 Preliminary objections and striking out
The notice of motion dated August 26, 2017, is hereby dismissed.
p. 4 Final orders
Costs to abide the Cause.
p. 4 Costs order

Key timeline

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2017-08-26
Petitioner files notice of motion to strike out respondents' documents for late service.
2017-08-27
Supreme Court dismisses the motion, ruling that striking out would be too drastic.

Practical implications

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For lawyers

Avoid drastic preliminary objections

When considering a preliminary objection to strike out documents for late service, assess whether granting it would dispose of the entire case. The court here refused because the delay was minimal and the consequence too severe. Instead, seek alternative remedies like costs or extensions. This ruling encourages focusing on merits over technicalities.

For businesses

Procedural delays may be excused

If your business is involved in litigation and you miss a filing deadline by a few hours, this case suggests courts may excuse the delay if no prejudice results. However, always aim to comply strictly. The ruling underscores that courts prioritize substantive justice, but repeated or significant delays could still harm your case.

For individuals

Justice over technicalities

If you are an individual in a court case and you serve documents slightly late, do not assume your case will be thrown out. The Supreme Court here allowed a few hours' delay because striking out the entire case would be unfair. This shows Kenyan courts focus on fairness and giving all parties a chance to be heard.

Frequently asked questions

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Can a case be thrown out for late filing of documents in Kenya?+

Not automatically. The court will consider the length of delay, prejudice to the other party, and whether striking out would dispose of the entire case. In this Supreme Court ruling, a delay of a few hours was not enough to strike out the respondents' case.

What happens if you serve court documents a few hours late in Kenya?+

The court may excuse the delay if it is minimal and no prejudice is shown. The Supreme Court dismissed an application to strike out documents served a few hours late, emphasizing that drastic consequences are not justified for minor procedural lapses.

Does the Supreme Court in Kenya allow late service of documents in election petitions?+

Yes, in this case the court allowed documents served a few hours late. It ruled that striking out the entire response would be too drastic. However, strict compliance is expected; the court weighed the minimal delay against the need to hear the case on its merits.

What is the 'scales of justice' principle in Kenyan courts?+

It means the court balances the interests of all parties and the need for substantive justice against procedural strictness. In this ruling, the court refused to strike out documents because the drastic consequence outweighed the minor delay, showing that fairness guides judicial discretion.

Later judgments citing this (2)

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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 & another v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2017). Presidential Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/39/eng@2017-08-27

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