Wafula v National Rainbow Coalition Party Of Kenya & 93 others
The bottom line
#Supreme Court cannot hear presidential election petitions filed after the 7-day constitutional deadline.
What this practically means
#The Supreme Court of Kenya dismissed a petition challenging the 2022 presidential election because it was filed seven months late, not within the required seven days. The court also said it could not decide on a request to waive court fees, as that must first go to the Registrar. This case shows that strict deadlines for election petitions must be followed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to entertain the application for leave to prosecute as a pauper in the first instance.
- 2.Whether the court has jurisdiction to entertain the Presidential Election Petition filed outside the seven-day timeframe under Article 140 of the Constitution.
Key legal issues
#Whether the Supreme Court has jurisdiction to entertain a presidential election petition filed outside the seven-day constitutional timeframe.
The court lacks jurisdiction to entertain a presidential election petition filed outside the seven-day period under Article 140 of the Constitution.
The court held that Article 140 of the Constitution vests the Supreme Court with the mandate to determine questions relating to the validity of a presidential election, but only if a petition is filed within seven days after the declaration of results. The petition in this case was filed seven months after the declaration, which is outside the stipulated timeframe. The court emphasized the constitutional imperative of adhering to electoral timelines, citing its earlier decisions in Raila Odinga & 7 others v IEBC & 3 others and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, which stress that the electorate should know with finality who their representatives are within reasonable time. Consequently, the court found it lacked jurisdiction and struck out the petition.
Whether the Supreme Court has jurisdiction to entertain an application for leave to prosecute as a pauper in the first instance.
The full bench of the Supreme Court lacks jurisdiction to entertain a prayer for leave to approach the court as a pauper in the first instance; such power lies with the Registrar under rule 63(2) of the Supreme Court Rules, 2020, reviewable by a single judge.
The court noted that rule 63(2) of the Supreme Court Rules, 2020 vests the Registrar with the power to consider a request for waiver of fees at the first instance. The decision of the Registrar is reviewable by a single judge, whose decision is final. Therefore, the full bench of the Supreme Court is not clothed with jurisdiction to entertain this prayer at the first instance, and the prayer must fail.
Legal principles established
#- Presidential election petitions must be filed within 7 days of results declaration, or the Supreme Court lacks jurisdiction.
- The full Supreme Court bench cannot first hear a request for pauper status; the Registrar handles that initially.
- Electoral timelines are constitutionally binding and cannot be extended by the court.
- A single judge reviews the Registrar's decision on fee waiver, and that decision is final.
- No costs are awarded when a petition is struck out for lack of jurisdiction.
Court orders
#- 1.The application dated March 13, 2023 is hereby dismissed.
- 2.The Presidential Election Petition No E001 of 2023 is hereby struck out for want of jurisdiction.
- 3.There shall be no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 140 of the Constitution
Relief refused
#Leave to prosecute the originating motion as a pauper
The court lacks jurisdiction to entertain this prayer in the first instance; rule 63(2) of the Supreme Court Rules, 2020 vests the power in the Registrar, reviewable by a single judge.
Orders staying the Azimio la Umoja One Kenya Alliance and affiliated parties from organizing demonstrations and picketing
The court lacked jurisdiction over the underlying presidential election petition, which was filed outside the constitutional timeframe, rendering the application for stay unsustainable.
Costs
There shall be no orders as to costs.
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 court can only, therefore, possess the requisite jurisdiction if a presidential election petition is filed within that fixed timeframe. As a consequence, if any presidential election petition is filed outside the stipulated time frame as is in the instant case, then it only follows that the court lacks jurisdiction to entertain the same.
Key timeline
#Practical implications
#Strict deadlines for election petitions
Lawyers must ensure any presidential election petition is filed within seven days of the declaration of results. Missing this deadline is fatal; the Supreme Court will strike out the case regardless of merits. Also, for pauper applications, follow the correct procedure: first to the Registrar, then review by a single judge.
Certainty in election outcomes
Businesses benefit from the finality of election results. This ruling reinforces that election challenges must be brought promptly, reducing prolonged uncertainty. Companies can plan based on the declared winner without fear of late lawsuits disrupting the political landscape.
Know your court deadlines
Individuals seeking to challenge a presidential election must act within seven days of the results. Also, if you cannot afford court fees, you must apply to the Registrar first, not the full bench. Ignoring these procedures will lead to your case being dismissed immediately.
Frequently asked questions
#Can I challenge a presidential election in Kenya after 7 days?+
No. The Supreme Court only has power to hear a presidential election petition if it is filed within seven days of the results being declared. Any petition filed after that, like this one filed seven months late, will be dismissed for lack of jurisdiction.
How do I apply for pauper status in the Supreme Court of Kenya?+
You must first apply to the Registrar of the Supreme Court for a waiver of court fees. The Registrar decides. If you disagree with the decision, you can ask a single judge to review it. The full bench of five judges cannot hear this request at the first instance.
What is the time limit for filing a presidential election petition in Kenya?+
Article 140 of the Constitution requires that any petition challenging the validity of a presidential election be filed in the Supreme Court within seven days after the declaration of election results by the Independent Electoral and Boundaries Commission.
What happens if I file a presidential election petition late in Kenya?+
The Supreme Court will strike out the petition for lack of jurisdiction. The court cannot extend the seven-day deadline, even if you have a strong case. The petition will be dismissed without any hearing on the merits, and no costs will be awarded.
Cite this brief
#Cite this brief
Caselaw, "Wafula v National Rainbow Coalition Party Of Kenya & 93 others", Case Analysis (2023). Presidential Election Petition E001 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/46/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.