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Supreme CourtDismissedPresidential Election Petition E005 of 2022

Odinga & another v Independent Electoral and Boundaries Commission & 9 others

Supreme Court of Kenya
29 August 2022
375 words in judgment
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The bottom line

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Supreme Court bars joinder of interested parties in presidential election petitions under Rule 17A(4).

What this practically means

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A Kenyan citizen and journalist tried to join a presidential election petition as an interested party, arguing the case affected his constitutional rights. The Supreme Court dismissed his application because Rule 17A(4) of the Presidential Petition Rules explicitly prohibits any person from being added as an interested party in such cases. The court found no merit and ordered no costs.

Executive summary

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This is a ruling by the Supreme Court of Kenya on an application by Milton Nyakundi Oriku, a Kenyan citizen, registered voter, and journalist, seeking to be joined as an interested party in a presidential election petition (Petition No. E003 of 2022). The applicant argued that he had an inherent interest in the outcome of the petition as it raised fundamental issues integral to the protection of his rights under Articles 10, 38, 73, 81, 86, and 140 of the Constitution, and that he had substantial issues to raise about the legitimacy of Forms 34A and 34B. No party filed a response to the application. The court, in a unanimous decision, dismissed the application. The basis for the dismissal was Rule 17A(4) of the Supreme Court (Presidential Petition) Rules 2017, which expressly provides that an application by any person as an interested party shall not be allowed in a presidential election petition. The court found no merit in the application and ordered no costs. The ruling affirms the strict procedural rules governing presidential election petitions, specifically barring the joinder of interested parties.

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 should be joined as an interested party in the presidential election petition.

Key legal issues

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01

Whether the applicant can be joined as an interested party in a presidential election petition.

Holding

The application for joinder is dismissed because Rule 17A(4) of the Supreme Court (Presidential Petition) Rules 2017 expressly prohibits allowing any person as an interested party in a presidential election petition.

Reasoning

The applicant sought to be joined as an interested party, arguing he had an inherent interest in the petition's outcome due to fundamental constitutional issues. However, the court noted that no party had filed a response to the application. The court applied Rule 17A(4) of the Supreme Court (Presidential Petition) Rules 2017, which categorically states that an application by any person as an interested party shall not be allowed in a presidential election petition. Consequently, the court found no merit in the application and dismissed it.

Legal principles established

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  • Rule 17A(4) of the Supreme Court (Presidential Petition) Rules 2017 categorically bars any person from being joined as an interested party in a presidential election petition.
  • No response from existing parties is required before the court dismisses a joinder application under this rule.
  • Constitutional arguments by an applicant do not override the clear procedural bar in presidential election petitions.
  • The court has no discretion to allow joinder once Rule 17A(4) applies.
  • Costs are not awarded when a joinder application is dismissed under this rule.

Court orders

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  1. 1.The application dated August 23, 2022 and filed on August 28, 2022 seeking joinder of Milton Nyakundi Oriku as interested party to this petition is hereby dismissed.
  2. 2.There shall be no orders as to costs.

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
P.M MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
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(4) of the Supreme Court (Presidential Petition) Rules 2017

Relief refused

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Joinder as an interested party

The application is barred by Rule 17A(4) of the Supreme Court (Presidential Petition) Rules 2017, which prohibits such joinder in a presidential election petition.

Costs

There shall be no orders as to costs.

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.

We note that the relevant law in this regard is rule 17A (4) of the Supreme Court (Presidential Petition) Rules 2017, which provides that an application by any person as an interested party shall not be allowed in a presidential election petition.
p. 3 Interested party joinder in presidential election petitions
Havingcarefully considered the application, responses and submissions by the respective parties herein, we find no merit in the application. We accordingly, dismiss it.
p. 3 Dismissal of application
The application dated August 23, 2022 and filed on August 28, 2022 seeking joinder of Milton Nyakundi Oriku as interested party to this petition is hereby dismissed.
p. 3 Final order
There shall be no orders as to costs.
p. 3 Costs order

Key timeline

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2022-08-28
Application for joinder filed by Milton Nyakundi Oriku.
2022
Supreme Court dismisses application, citing Rule 17A(4) of the Presidential Petition Rules.

Practical implications

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For lawyers

No joinder in presidential petitions

When advising clients on presidential election disputes, note that Rule 17A(4) is an absolute bar to joining any interested party. Do not file joinder applications in such petitions; instead, consider alternative avenues like amicus curiae briefs or separate constitutional petitions. This ruling saves time and costs.

For businesses

Limited participation in election cases

Businesses with interests in election outcomes cannot join presidential election petitions as interested parties. If you need to influence or monitor such cases, engage through public interest litigation or advocacy groups, but be aware that direct intervention in the petition itself is prohibited.

For individuals

No direct role in presidential petitions

As an individual Kenyan, you cannot ask the court to let you join a presidential election petition as an interested party. The rules strictly forbid it. If you have concerns about the election, you can file your own petition or raise issues through other legal channels, but not by joining an existing one.

Frequently asked questions

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Can I join a presidential election petition as an interested party in Kenya?+

No. The Supreme Court has ruled that Rule 17A(4) of the Presidential Petition Rules 2017 absolutely prohibits any person from being joined as an interested party in a presidential election petition. This was confirmed in the Milton Nyakundi Oriku case.

What is Rule 17A(4) of the Supreme Court Presidential Petition Rules in Kenya?+

Rule 17A(4) states that an application by any person to be joined as an interested party shall not be allowed in a presidential election petition. It is a strict procedural rule that leaves no room for exceptions.

Why was Milton Nyakundi Oriku's application to join the 2022 presidential petition rejected?+

The Supreme Court dismissed his application because Rule 17A(4) explicitly bars joinder of interested parties in presidential election petitions. The court found no merit in his constitutional arguments and ordered no costs.

Can I challenge a presidential election result in Kenya without being a candidate?+

Yes, you can file your own presidential election petition if you meet the legal requirements. However, you cannot join an existing petition as an interested party. The rules limit participation to the petitioner, respondents, and the court.

Cite this brief

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Cite this brief

Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 9 others", Case Analysis (2022). Presidential Election Petition E005 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/45/eng@2022-08-29

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