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Case Brief · caselaw.co.ke
Supreme CourtAllowedPresidential Election Petition E005 of 2022

Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya (Amicus Curiae)

Supreme Court of Kenya
29 August 2022
341 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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LSK can file a brief in the presidential poll case but cannot speak in court.

What this practically means

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The Supreme Court allowed the Law Society of Kenya (LSK) to join the 2022 presidential election petition as a friend of the court, called an amicus curiae. LSK filed a written argument explaining how the law applies. However, the court said LSK cannot make oral submissions during hearings. The decision was based on earlier cases that set rules for when outsiders can help the court. This keeps the process focused while still getting expert input.

Executive summary

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This is a brief ruling on an application by the Law Society of Kenya (LSK) dated August 27, 2022, seeking leave to be joined as amicus curiae in Presidential Election Petition No E005 of 2022. The application was supported by an affidavit of Florence Wairimu Muturi and an amicus brief. It was brought under Rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition Rules, 2017) and Rule 19 of the Supreme Court Rules, 2020. The Supreme Court, composed of a full bench of seven judges led by Chief Justice M. K. Koome, considered the application and found that it satisfied the test for admission of amici curiae established in Trusted Society of Human Rights Alliance v Mumo Matemo and Francis Muruatetu v Republic. Consequently, the court admitted LSK as amicus curiae but restricted it to relying solely on its written brief, without making oral submissions. The ruling was delivered on August 29, 2022, at Nairobi. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the applicant satisfies the test for admission as amicus curiae in the Presidential Election Petition

Key legal issues

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01

Whether the Law Society of Kenya should be admitted as amicus curiae in the Presidential Election Petition

Holding

The application is allowed; the Law Society of Kenya is admitted as amicus curiae.

Reasoning

The court considered the application, supporting affidavit, and amicus brief. It found that the applicant satisfied the test for admission of amici curiae established in Trusted Society of Human Rights Alliance v Mumo Matemo and Francis Muruatetu v Republic, as well as the requirements of the relevant rules. The amicus was admitted but restricted to its written brief, without oral submissions.

Legal principles established

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  • Amicus curiae status is granted only when the applicant meets the test from prior Supreme Court rulings.
  • An amicus must file a written brief explaining the legal issues before being admitted.
  • The Supreme Court can limit an amicus to written submissions only, barring oral arguments.
  • No costs are awarded for amicus applications unless the court orders otherwise.

Court orders

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  1. 1.The applicant is hereby admitted as an amicus curiae in Petition No E005 of 2022
  2. 2.The amicus will not make oral submissions and shall rely solely on its written brief

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition Rules, 2017) and rule 19 of the Supreme Court Rules, 2020

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.

Consequently, the applicant is hereby admitted as an amicus curiae in Petition No E005 of 2022. The amicus will not make oral submissions and shall rely solely on its written brief.
p. 3 Admission of amicus curiae and restriction on oral submissions
We are satisfied that the application satisfies the test established by this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others, SC Petition No 12 of 2013; [2015] eKLR and Francis Muruatetu & another v Republic & 5 others, SC Petition No 15 &16 of 2015 (Consolidated): [2016] eKLR for admission of amici curiae
p. 3 Test for admission of amicus curiae

Key timeline

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2022-08-27
Law Society of Kenya files application to join as amicus curiae in Presidential Election Petition No E005 of 2022.
2022-08-29
Supreme Court ruling allows LSK as amicus curiae, restricts it to written brief only.

Practical implications

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For lawyers

Amicus admission standards reaffirmed

When seeking amicus status in the Supreme Court, always cite Trusted Society of Human Rights Alliance v Mumo Matemo and Francis Muruatetu v Republic. Ensure your written brief clearly shows how your expertise will assist the court. Expect the court to limit your role—prepare to rely on written arguments alone without oral submissions.

For businesses

Expert input possible without court hearings

If your industry body or trade association wants to influence a Supreme Court case affecting your sector, you can file an amicus brief. But the court may not let you speak in person. Prepare a strong written document that explains the legal issues from your perspective. This is a cost-effective way to be heard without hiring lawyers for oral arguments.

For individuals

Citizens' groups can still contribute to cases

If you belong to a civil society organization that wants to weigh in on a major election petition, you can apply as a friend of the court. The court will assess whether your input is useful. Be ready to write your arguments down—you probably won't get to speak in court. This ruling shows the Supreme Court values written expertise over oral advocacy from outsiders.

Frequently asked questions

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What does amicus curiae mean in Kenya's Supreme Court?+

Amicus curiae is Latin for 'friend of the court.' In Kenya, it allows a person or organization not directly involved in a case to provide expert legal arguments to help the Supreme Court make its decision. The court decides whether to admit them and can limit their role.

Can the Law Society of Kenya speak in court as amicus curiae?+

No, in this case the Supreme Court admitted LSK as amicus but restricted it to relying solely on its written brief. LSK was not allowed to make oral submissions during the hearing. The court has discretion to set these limits.

How does someone become an amicus curiae in a Kenyan presidential election petition?+

You must file an application under Supreme Court rules, supported by an affidavit and a written brief. The court will check if you meet the test from earlier cases like Trusted Society v Mumo Matemo. Approval is not automatic; the court decides case by case.

What are the costs for an amicus curiae application in Kenya?+

In this ruling, the Supreme Court made no order as to costs, meaning each party bears its own costs. This is typical for amicus applications. However, the court could order costs if it sees fit, so check the specific case rules.

Cite this brief

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Cite this brief

Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya (Amicus Curiae)", Case Analysis (2022). Presidential Election Petition E005 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/50/eng@2022-08-29

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