Odinga & another v Independent Electoral and Boundaries Commission & 9 others (Presidential Election Petition E005 of 2022) [2022] KESC 45 (KLR) (29 August 2022) (Ruling)

Odinga & another v Independent Electoral and Boundaries Commission & 9 others (Presidential Election Petition E005 of 2022) [2022] KESC 45 (KLR) (29 August 2022) (Ruling) Neutral citation: [2022] KESC 45 (KLR) Republic of Kenya In the Supreme Court of Kenya Presidential Election Petition E005 of 2022 MK Koome, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ August 29, 2022 Between Raila Odinga 1st Petitioner Martha Wangari Karua 2nd Petitioner and Independent Electoral and Boundaries Commission 1st Respondent Wanyonyi Wafula Chebukati 2nd Respondent Boya Molu 3rd Respondent Prof Abdi Yakub Guliye 4th Respondent Juliana Whonge Cherera 5th Respondent Justus Nyangaya 6th Respondent Francis Wanderi 7th Respondent Irene Massit 8th Respondent William Samoei Ruto 9th Respondent Milton Nyakundi Oriku 10th Respondent Applications to be admitted as an interested party in a presidential election petition are inadmissible. Reported by John Ribia **_Electoral Law_** _\- presidential election petition - parties – joinder application – application to be joined as an interested party – category of persons that may be enjoined as an interested party - whether the applicant could be admitted as an interested party in the presidential election petition - Supreme Court Rules, 2020, rule 19; Supreme Court (Presidential Election Petition) Rules, 2017, rule 17A(1) and (2)_ Brief facts The applicant sought to be joined as an interested party in the presidential election petition on grounds that he had an inherent interest in the outcome of the petition as it raised fundamental issues which were integral to the protection of his rights as enshrined 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, which were central to the petition. No party filed a response to the petition. Issues Whether the applicant could be admitted as an interested party in the presidential election petition. Relevant provisions of the Law **Supreme Court (Presidential Election Petition) Rules, 2017****Rule 17A - Third party applications** _(1) A person seeking to be admitted as a friend of the Court may apply for admission at the close of pleadings.__(2) An application made under sub-rule (1) shall include a friend of the court brief setting out the person's expertise and reasons for requesting the admission.__(3) The Court may deliver a ruling by way of electronic communication to the applicant.__(4) An application by any person to join the petition as an interested party shall not be allowed._ Held Rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules, 2017 provided that an application by any person as an interested party could not be allowed in a presidential election petition. _Application dismissed. No order as to costs._ Citations **Cases** None referred to**Statutes**** _Kenya_** 1. Constitution of Kenya articles 10, 38, 73, 81, 86, 140 - (Interpreted) 2. Supreme Court (Presidential Petition) Rules, 2017 (cap 9B Sub Leg) rule 17A(4) - (Interpreted) Ruling 1.Upon perusing the notice of motion application by Milton Nyakundi Oriku, the applicant, dated August 23, 2022 and filed on August 28, 2022, seeking to be enjoined in these proceedings as an interested party; and 2.Upon reading the supporting affidavit sworn on August 23, 2022, of the said Milton Nyakundi Oriku, a Kenyan citizen, who is a registered voter and works as a journalist; and 3.Upon considering the said application together with his written submissions dated August 23, 2022 and filed on August 28, 2022, wherein the applicant argues that he has an inherent interest in the outcome of the petition as it raises fundamental issues which are integral to the protection of his rights as enshrined under articles 10, 38, 73,81, 86 and 140 of the [Constitution](/akn/ke/act/2010/constitution); and that he has substantial issues to raise about the legitimacy of Forms 34A and Forms 34B which are central to Petition; and 4.Noting that no party has filed a response to the application; and 5.We note that the relevant law in this regard is rule 17A (4) of the [Supreme Court (Presidential Petition) Rules 2017](http://www.kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=No.%207%20of%202011#doc-5), which provides that an application by any person as an interested party shall not be allowed in a presidential election petition. 6.Havingcarefully considered the application, responses and submissions by the respective parties herein, we find no merit in the application. We accordingly, dismiss it. Orders:a.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.b.There shall be no orders as to costs. 7.It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 29 TH DAY OF AUGUST 2022.****...........................****M.K KOOME****CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT****.......................****P.M MWILU****DEPUTY CHIEF JUSTICE & DEPUTY PRESIDENT OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT****...........................****M.K IBRAHIM****JUSTICE OF THE SUPREME COURT****............................****C. WANJALA****JUSTICE OF THE SUPREME****.................................****NJOKI NDUNGU****JUSTICE OF THE SUPREME COURT****.........................****I. LENAOLA****JUSTICE OF THE SUPREME COURT****...................****W. OUKO****JUSTICE OF THE SUPREME COURT** _I certify that this is a true copy of the original_**REGISTRAR****SUPREME COURT OF KENYA**