Odinga & another v Independent Electoral and Boundaries Commission & 8 others
The bottom line
#Supreme Court used its inherent power to allow late affidavits for fairness.
What this practically means
#In a presidential election petition, three IEBC officials were accused of conspiring to alter election results. The rules didn't allow them to file a response at that stage. But the Supreme Court said the allegations were serious and fairness demanded they be heard. So the court used its special power to let them submit their side of the story.
Executive summary
#Key legal issues
#Whether the court can admit further affidavits under rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017
Rule 17 does not provide for further affidavits, but the court may admit them in exceptional circumstances using its inherent powers.
The court noted that rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 contains no provision for further affidavits. However, the allegations made by the 2nd, 3rd, and 4th respondents in their responses were serious and occurred during the pendency of the matter. To ensure fairness and justice, the court deemed this an exceptional circumstance and invoked its inherent powers under rule 4(2) of the Rules and section 3A of the Supreme Court Act to allow the admission of the further affidavits.
Legal principles established
#- The Presidential Election Petition Rules do not allow further affidavits after the initial response.
- The Supreme Court has inherent powers to admit affidavits in exceptional circumstances.
- Serious allegations made during proceedings can be an exceptional circumstance.
- Fairness and justice can override strict procedural rules.
- The court may invoke section 3A of the Supreme Court Act and rule 4(2) of the Rules.
- No order as to costs when an application is allowed in the interest of justice.
Court orders
#- 1.The notice of motion dated August 28, 2022 be and is hereby allowed
- 2.There shall be no order as to costs
- Jurisdiction invoked
- Not specified in the judgment
Key timeline
#Practical implications
#Use inherent powers for late filings
When procedural rules bar a filing, argue exceptional circumstances and fairness. Cite rule 4(2) of the Supreme Court (Presidential Election Petition) Rules and section 3A of the Supreme Court Act. Be prepared to show serious prejudice if the filing is denied.
Respond to serious allegations promptly
Even if internal rules or deadlines prevent you from responding, this ruling shows courts may allow late responses when allegations are grave. Ensure you document the reasons for the delay and the potential harm from not being heard.
Your right to be heard in court
If you are accused of wrongdoing in a court case and the rules seem to block you from responding, you can ask the court to use its special power to let you reply. This is especially true when the accusations are serious and you would suffer unfairness.
Frequently asked questions
#What is a further affidavit in Kenya's Supreme Court?+
A further affidavit is an additional sworn statement filed after the initial response. In presidential election petitions, rule 17 does not allow them, but the court can permit them in exceptional cases to ensure fairness.
Can the Supreme Court allow evidence after the deadline in Kenya?+
Yes, if the circumstances are exceptional. The court has inherent powers under the Supreme Court Act and its rules to admit late evidence when justice requires it, such as when serious allegations arise during the case.
Why did the court allow the affidavits in the Cherera case?+
The court found that the allegations against the IEBC officials were serious and could affect the outcome. Since the rules didn't provide for a further response, the court used its inherent powers to allow the affidavits to avoid unfairness.
What does this ruling mean for future elections in Kenya?+
It means that the Supreme Court will prioritize fairness over strict procedural rules when serious allegations surface. Parties in election disputes should act quickly but know that the court can bend the rules for justice.
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 8 others", Case Analysis (2022). Presidential Election Petition E005 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/48/eng@2022-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.