Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 8 others (Interested Parties)
The bottom line
#Supreme Court can only hear election disputes after the vote, not before it happens.
What this practically means
#The Supreme Court ruled that it cannot decide on the date of the next presidential election before the election is held. Its power to hear presidential election disputes only starts once a president-elect is declared and a petition is filed. Any attempt to ask the court to rule on pre-election issues, like the election date, is outside its jurisdiction. The court also said that the High Court can handle such constitutional questions.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction under article 163(3)(a) as read with article 140 of the Constitution to hear and determine a pre-election dispute concerning the date of the next presidential election.
- 2.Whether the procedure of seeking leave to admit a petition that has already been filed is proper and recognised by the rules of the Supreme Court.
Key legal issues
#Whether the Supreme Court has jurisdiction under article 163(3)(a) as read with article 140 of the Constitution to determine a pre-election dispute regarding the date of the next presidential election.
The Supreme Court lacks jurisdiction to determine pre-election disputes, including the date of the next presidential election, as its exclusive original jurisdiction under article 163(3)(a) read with article 140 is only triggered after a presidential election has been held and its validity is challenged.
The court held that article 163(3)(a) read with article 140 confers exclusive original jurisdiction to determine disputes relating to the election to the office of the President, but this jurisdiction is only triggered after a petition under article 140 has been filed following the declaration of a president-elect. The court relied on its earlier decision in Okoiti v IEBC, where it stated that it cannot determine the validity of a presidential election before it is held. The court also noted that the High Court has original jurisdiction under article 165(2)(d) to interpret the Constitution, including questions about election dates, as demonstrated in Ekuru Aukot v IEBC and John Harun Mwau v Attorney General.
Whether the procedure of seeking leave to admit a petition that has already been filed is proper and recognised by the rules of the Supreme Court.
The procedure of seeking leave to admit a petition that has already been filed is alien to the rules of the Supreme Court and is superfluous.
The court found that the applicants filed the petition simultaneously with the application for leave to admit it. The court stated that it does not know how a party can file a petition and then simultaneously seek leave to file the same petition which has already been received and admitted as filed. The court noted that none of the constitutional and statutory provisions cited by the applicants could properly grant the court jurisdiction to grant such leave, and that the court cannot expand its jurisdiction through judicial craft or innovation.
Legal principles established
#- Supreme Court’s exclusive original jurisdiction under Article 163(3)(a) read with Article 140 only exists after a presidential election petition is filed.
- The Court cannot determine pre-election disputes such as the date of the next presidential election.
- A court cannot expand its own jurisdiction through judicial craft or constitutional innovation.
- Seeking leave to admit a petition that has already been filed is an alien procedure under Supreme Court rules.
- The High Court has original jurisdiction under Article 165(2)(d) to interpret the Constitution on election dates.
Court orders
#- 1.The applicants’ notice of motion dated April 23, 2025 and filed on April 24, 2025 is hereby struck out for want of jurisdiction.
- 2.Each party shall bear their costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Articles 20, 22, 23, 50(1), 163(3)(a), 258 and 259(1) of the Constitution; sections 3A, 12(1), 21(2), and 24 of the Supreme Court Act; rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017; rules 31 and 32 of the Supreme Court Rules, 2020
Relief refused
#Leave to admit the petition for hearing before the honourable court since it raises a dispute relating to presidential elections.
The court lacked jurisdiction; the procedure of seeking leave to admit a petition already filed is alien to the rules of the court.
Orders that the application and petition be heard and determined expeditiously, within fourteen days.
The application was struck out for want of jurisdiction, so no substantive orders could be granted.
Costs
Each party shall bear their costs of the application.
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.
It has been reiterated that this court and indeed any other court operates strictly within constitutional and statutory limits and cannot expand its jurisdiction through judicial craft or constitutional innovation as the applicants are demanding of us in the present application.
We wish to state from the onset that such a procedure is alien to the rules of this court. We say so because we do not know how a party can file a petition, then simultaneously seek leave to file the same petition which has already been received and admitted as filed by this court.
The Supreme Court cannot determine the validity or otherwise of a presidential election, before the same is held and the results thereof declared.
Key timeline
#Practical implications
#Respect jurisdictional limits strictly
Do not file pre-election petitions in the Supreme Court under Article 163(3)(a). The Court will strike them out for lack of jurisdiction. Instead, direct clients to the High Court for constitutional interpretation on election dates. Also, avoid filing applications for leave to admit a petition already on record; that procedure is invalid.
Election date disputes not for Supreme Court
Businesses relying on the election calendar for planning should note that pre-election date challenges must go to the High Court, not the Supreme Court. The Supreme Court only intervenes after a presidential election when its validity is challenged. This ruling maintains the separation of election stages and preserves the finality of the Supreme Court's post-election role.
Cannot challenge election date early
If you want to dispute the date of the next presidential election, you cannot take that case directly to the Supreme Court. The Court only handles disputes after the election is held. For any pre-election question on the Constitution, you must file your case in the High Court first. This ruling prevents premature litigation.
Frequently asked questions
#Can the Supreme Court decide when the next presidential election in Kenya will be?+
No. The Supreme Court ruled that it can only hear disputes after a presidential election has been held and a petition is filed. Deciding the election date before the election is a pre-election dispute that falls outside its jurisdiction.
Why was Dr. Owiso Owiso's case struck out by the Supreme Court in Kenya?+
The case was struck out because the Supreme Court lacked jurisdiction. The applicants asked the Court to determine the date of the next presidential election, but the Court's power only starts after an election is held and its validity is challenged. The Court also found the procedure used was improper.
Which court in Kenya can hear a dispute about the date of a presidential election?+
The High Court has original jurisdiction under Article 165(2)(d) of the Constitution to interpret the Constitution, including questions about election dates. The Supreme Court only handles election disputes after the election is declared and a petition is filed.
What is the procedure for filing a petition in the Supreme Court of Kenya?+
You must file a petition only after the event you are challenging has occurred. For presidential elections, you file a petition under Article 140 after a president-elect is declared. You cannot seek leave to admit a petition that is already filed; that is not recognized by the Supreme Court rules.
Cite this brief
#Cite this brief
Caselaw, "Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 8 others (Interested Parties)", Case Analysis (2025). Petition (Application) E020 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/52/eng@2025-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.