Odinga & another v Independent Electoral & Boundaries Commission & 2 others; Law Society of Kenya (Intended Amicus Curiae)
The bottom line
#LSK can join presidential election case but only on how to interpret election law.
What this practically means
#The Supreme Court allowed the Law Society of Kenya to participate as a friend of the court in a presidential election petition. However, LSK must focus only on explaining how Section 83 of the Elections Act should be read together with the Constitution. The court rejected claims that LSK was biased because of its President's earlier comments, saying the application is judged on LSK's official objectives, not individual members' views.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Law Society of Kenya should be admitted as amicus curiae in this petition
Key legal issues
#Whether the Law Society of Kenya should be admitted as amicus curiae in the presidential election petition
The Law Society of Kenya is admitted as amicus curiae because the petition raises constitutional questions on articles 81 and 86 of the Constitution, which fall squarely within the Society's statutory objectives, and the Society has demonstrated the requisite expertise and impartiality.
The court considered the legal framework under rule 54 of the Supreme Court Rules, 2012, and the principles from Trusted Society of Human Rights Alliance v Mumo Matemu. It held that each application must be determined on its own merit. The court rejected the 3rd respondent's argument that LSK lacked impartiality due to its President's press release and internal council divisions, stating that the application must be evaluated based on the Society's objectives, not individual members' positions. The court found that the interpretation of articles 81 and 86 of the Constitution and section 83 of the Elections Act is of great public interest and falls within LSK's mandate to assist courts in the administration of justice.
Legal principles established
#- Each amicus application is decided case-by-case based on its own facts.
- A court cannot assume an amicus has expertise; it must be pleaded and proved.
- A statutory body's amicus application is evaluated on its objectives, not members' individual positions.
- An amicus must show impartiality and relevant expertise to assist the court.
- The court can limit an amicus to specific legal issues in the case.
Court orders
#- 1.The application for admission as amicus curiae is allowed
- 2.The Law Society of Kenya is directed to restrict its submissions to the single issue contained in its brief, particularly: the rightful interpretation of section 83 of the Elections Act in relation to the Constitution of Kenya 2010
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017
Quotable passages
#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 upshot is that the application for admission as amicus curiae is allowed. Orders accordingly.
Each matter before the court is unique and raises unique issues for determination and legal questions under different circumstances. This is the reason why an application has to be determined on its merit on a case to case basis so as to determine whether an intended applicant possesses the expertise relevant to assist the court.
We take note that when such an application is filed before the court, it has to be evaluated on the basis of the Society’s objectives and not individual Society members.
Key timeline
#Practical implications
#Draft amicus applications with proof of expertise
When applying to appear as amicus curiae, you must specifically plead and prove your expertise on the issues. The court will not take judicial notice of your organisation's general reputation. Also, if your client is a statutory body, focus on its legal objectives, not the personal views of its leaders or members.
Amicus role limited to legal interpretation
If your industry body wants to join a case as amicus, expect the court to restrict your submissions to narrow legal questions. In this ruling, LSK was limited to interpreting one section of the Elections Act. Prepare to argue only on points of law where your organisation has clear statutory or professional expertise.
Court rejects bias claims against LSK
Individuals who oppose an amicus application cannot rely on a leader's public statement or internal disagreements to prove bias. The court looks at the organisation's official mandate. This means professional bodies like LSK can still participate in high-profile cases even if some members have taken public positions.
Frequently asked questions
#What is an amicus curiae in Kenya?+
An amicus curiae, or 'friend of the court', is a person or organisation that is not a party to a case but gives expert legal or factual help. In Kenya, the Supreme Court allows amicus applications under Rule 54 of its Rules, but each application is decided on its own merits.
Why was LSK allowed to join the presidential election petition in Kenya?+
LSK was allowed because the petition raised constitutional questions about elections under Articles 81 and 86 of the Constitution. These issues fall within LSK's statutory objectives to assist courts in the administration of justice. The court limited LSK to arguing only the interpretation of Section 83 of the Elections Act.
Can a court limit what an amicus curiae argues in Kenya?+
Yes. In this case, the Supreme Court directed LSK to restrict its submissions to the single issue of interpreting Section 83 of the Elections Act in relation to the Constitution. Courts can set boundaries to ensure the amicus helps without expanding the case beyond the parties' disputes.
Does a public statement by an LSK leader affect its amicus application in Kenya?+
No. The Supreme Court ruled that an amicus application by a statutory body like LSK is evaluated based on the Society's objectives, not the individual positions of its members or leaders. A press release by the LSK President does not disqualify the Society from being impartial.
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral & Boundaries Commission & 2 others; Law Society of Kenya (Intended Amicus Curiae)", Case Analysis (2017). Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/35/eng@2017-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.