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Supreme CourtDismissedPresidential Election Petition 1 of 2017· [2017] KESC 40 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Information Communication Technology Association (ICTAK) (Amicus Curiae)

Supreme Court of Kenya
27 August 2017
1,306 words in judgment
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The bottom line

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Supreme Court rejects ICTAK's bid to join election petition as amicus curiae for lacking novel legal points.

What this practically means

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The Supreme Court of Kenya dismissed an application by the Information Communication Technology Association of Kenya (ICTAK) to join a presidential election petition as a friend of the court. The court found that ICTAK's proposed arguments were too general and did not raise any new legal issues not already covered by the parties. The court emphasized that amicus briefs must focus on novel points of law, not repeat existing arguments.

Executive summary

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This ruling by the Supreme Court of Kenya (sitting as a full bench of seven judges) dismissed an application by the Information Communication Technology Association of Kenya (ICTAK) to be enjoined as amicus curiae in the presidential election petition challenging the election of President Uhuru Kenyatta. The applicant, an ICT professional association, sought to make submissions on election-technology issues, arguing it would provide objective expertise on the deployment of electoral systems and the impact of any transmission failures. The court applied the principles established in Trusted Society of Human Rights Alliance v Mumo Matemu, which require an amicus brief to be limited to legal arguments, maintain neutrality, and address novel points of law not already covered by the parties. The court found that the parties had already extensively addressed the relevant constitutional and statutory provisions (Articles 81 and 86 of the Constitution, sections 39, 44, 44A of the Elections Act, and the Elections (Technology) Regulations) through their experts and submissions. The applicant failed to demonstrate what new legal aspect it would introduce, and its propositions were too general and not focused on a specific question before the court. Consequently, the application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the applicant met the threshold for admission as amicus curiae under Rule 54 of the Supreme Court Rules, 2012.

Holding

The applicant did not meet the threshold because its proposed brief did not address points of law not already covered by the parties, and its propositions were too general.

Reasoning

The court applied the principles from Trusted Society of Human Rights Alliance v Mumo Matemu, which require an amicus brief to be limited to legal arguments, maintain neutrality, and address novel points of law not already addressed by the parties. The court found that the parties had already extensively addressed the relevant constitutional and statutory provisions (Articles 81 and 86 of the Constitution, sections 39, 44, 44A of the Elections Act, and the Elections (Technology) Regulations) through their experts and submissions. The applicant failed to show what new legal aspect it would introduce, and its propositions were too general and not focused on a specific question before the court.

Legal principles established

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  • An amicus curiae must address only points of law not already raised by the parties.
  • The court considers the expertise, independence, and impartiality of the amicus applicant.
  • An amicus brief must be limited to legal arguments and maintain neutrality.
  • General propositions without a specific focus on the question before the court are insufficient.
  • Extensive submissions by parties on relevant law can make an amicus intervention unnecessary.

Court orders

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  1. 1.The application for joinder as amicus curiae is dismissed.
  2. 2.No orders as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 86
  • Elections Act, 2011Section 39
  • Elections Act, 2011Section 44
  • Elections Act, 2011Section 44A
  • Elections (General) Regulations, 2012Regulation 82
  • Elections (General) Regulations, 2012Regulation 87
  • Elections (Technology) Regulations, 2017
  • Supreme Court Rules, 2012Rule 54
  • Supreme Court (Presidential Election Petition) Rules, 2017Rule 4(2)
  • Societies Act

Cases cited (2)

  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    Supreme Court Petition No 12 of 2013, [2015] eKLR
  • Francis Karioki Muruatetu & another v Republic & 5 others
    [2016] eKLR
Jurisdiction invoked
Rule 54 of the Supreme Court Rules, 2012, as read with Rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017

Key timeline

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2024-01-01
Supreme Court dismisses ICTAK's application for joinder as amicus curiae in the presidential election petition.

Practical implications

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For lawyers

Drafting amicus briefs in Kenya

When applying to appear as amicus curiae in the Supreme Court, ensure your brief identifies a specific, novel legal question not already addressed by the parties. Avoid general statements about the law or public interest. Demonstrate clearly how your expertise will aid the court on a new point of law, not simply repeat existing arguments.

For businesses

Intervening in litigation strategically

If your organization, like ICTAK, wants to offer expert input in a high-profile case, first review all parties' submissions. Your proposed contribution must add a distinct legal angle. If the parties have already covered the relevant legal provisions and technologies, the court will likely reject your intervention as unnecessary.

For individuals

Understanding amicus curiae role

As a citizen, you may hear about groups wanting to join court cases as 'friends of the court'. This ruling confirms that such groups are not allowed to simply repeat what the main parties have already said. They must bring new, helpful legal arguments that the court hasn't yet considered.

Frequently asked questions

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What is an amicus curiae in Kenya?+

An amicus curiae, or 'friend of the court', is a person or organization that is not a party to a case but offers legal expertise or information to help the court decide. In Kenya, the Supreme Court has strict rules on when it will allow such participation.

Can an organization like ICTAK join a Supreme Court case as amicus in Kenya?+

Yes, but only if it can show that its brief will address a new point of law not already covered by the parties. The court rejected ICTAK's application because its proposed arguments were too general and the parties had already extensively discussed the relevant election technology laws.

What are the requirements for filing an amicus brief in the Supreme Court of Kenya?+

Under Rule 54 of the Supreme Court Rules, the applicant must demonstrate expertise, independence, and impartiality. The brief must focus on legal arguments, remain neutral, and introduce novel aspects of the legal issue. The court may also consider public interest.

Why was ICTAK's application to be amicus curiae dismissed in Kenya?+

The Supreme Court found that ICTAK's proposed submissions did not raise any new legal points. The parties had already addressed the relevant constitutional provisions and election technology regulations. The court said the propositions were too general and not focused on a specific question before it.

Cite this brief

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Cite this brief

Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Information Communication Technology Association (ICTAK) (Amicus Curiae)", Case Analysis (2017). Presidential Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/40/eng@2017-08-27

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