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Case Brief · caselaw.co.ke
Supreme CourtDismissedPresidential Election Petition E003 of 2022

Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others

Supreme Court of Kenya
30 August 2022
272 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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A late application to remove a party from a presidential election petition is invalid and an abuse of court process.

What this practically means

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The Supreme Court rejected an application by William Ruto to have the Attorney General removed from a presidential election petition. The application was filed after the deadline set by the rules. The court also noted that the same issue had already been decided in a previous case. So the application was dismissed as invalid and an abuse of court process. No costs were awarded.

Executive summary

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This was an application by William Samoei Ruto, the 3rd respondent in Petition No E003 of 2022, seeking leave to strike out the name of the Attorney General on grounds of misjoinder. The application was brought under Rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 and supported by an affidavit sworn on August 27, 2022. The Supreme Court, in a unanimous ruling delivered on August 30, 2022, dismissed the application. The court found that the application, filed on August 29, 2022 at 4:45 pm, was filed out of time and therefore incompetent and an abuse of court process. Additionally, the court noted that the issue raised in the application had already been determined in its earlier ruling delivered on August 29, 2022 in Petition E002 of 2022. The court made no orders as to costs. The ruling was delivered by a full bench of seven judges led by Chief Justice M. K. Koome.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application to strike out the name of the Attorney General was filed within time
  2. 2.Whether the application was competent or an abuse of court process

Key legal issues

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01

Whether the application to strike out the Attorney General was filed within the prescribed time under Rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017

Holding

The application was filed out of time and is therefore incompetent and an abuse of court process.

Reasoning

The court examined the filing date and time of the application, noting it was filed on August 29, 2022 at 4:45 pm. Without specifying the exact deadline, the court concluded this was out of time, rendering the application incompetent. Additionally, the court noted that the same issue had already been determined in a prior ruling in Petition E002 of 2022, making the application an abuse of process.

Legal principles established

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  • An application filed after the deadline in the Supreme Court (Presidential Election Petition) Rules is invalid.
  • An application that raises an issue already decided in a previous case is an abuse of court process.
  • Strict adherence to time limits is required in presidential election petitions.
  • The court may dismiss such applications without awarding costs.

Court orders

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  1. 1.The application is hereby dismissed with 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
Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. 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 17 of the Supreme Court (Presidential Election Petition) Rules, 2017

Relief refused

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Leave to strike out the name of the Attorney General in Petition No E003 of 2022 on grounds of misjoinder

The application was filed out of time, incompetent, and an abuse of court process; the issue had already been determined in a prior ruling in Petition E002 of 2022

Costs

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 find that the application, which was filed on the August 29, 2022 at 4:45 pm was filed out of time, is therefore incompetent and an abuse of the court process.
p. 2 timeliness of applications under presidential election petition rules
Consequently, the application is hereby dismissed with no orders as to costs.
p. 2 final orders

Key timeline

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2022-08-27
Affidavit in support of application sworn by William Samoei Ruto.
2022-08-29
Application to strike out Attorney General filed at 4:45 pm.
2022-08-29
Supreme Court delivers prior ruling in Petition E002 of 2022 on the same issue.
2022-08-30
Supreme Court dismisses application as filed out of time and an abuse of process.

Practical implications

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For lawyers

Strict adherence to time limits

Always verify filing deadlines under the Supreme Court (Presidential Election Petition) Rules, 2017. Even a late filing of a few hours can render an application incompetent and an abuse of process. Also, avoid re-litigating issues already decided in prior rulings to prevent summary dismissal.

For businesses

Court deadlines are absolute

Businesses involved in litigation should treat court-ordered deadlines as non-negotiable. This case shows that even a high-profile party cannot bypass time limits. Ensure your legal team files documents well before the deadline to avoid automatic dismissal.

For individuals

Know your court deadlines

If you are a party in a Kenyan election petition, understand that all applications must be filed within the strict timeframes set by the rules. Missing the deadline means your application will be rejected, even if it has merit. Always confirm deadlines with your lawyer.

Frequently asked questions

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What happens if you file an application late in a Kenyan presidential election petition?+

If you file an application after the deadline set by the Supreme Court (Presidential Election Petition) Rules, 2017, it is considered invalid and an abuse of court process. The court will dismiss it without considering the merits.

Can you remove the Attorney General from a Kenyan election petition?+

You can apply to remove the Attorney General, but you must do so within the time limits set by the rules. If you file late, the court will dismiss the application. Also, if the issue has already been decided in another case, it will be rejected as an abuse of process.

What is an abuse of court process in Kenya?+

An abuse of court process includes filing applications that are frivolous, vexatious, or filed after the deadline. It also includes re-litigating issues that have already been decided by the court. The court can dismiss such applications and may order costs.

What is the time limit for filing applications in Kenyan presidential election petitions?+

The Supreme Court (Presidential Election Petition) Rules, 2017 set strict deadlines for filing applications. For example, applications to strike out a party must be filed within a specific period after the petition is filed. Missing the deadline by even a few hours makes the application invalid.

Cite this brief

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Cite this brief

Caselaw, "Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others", Case Analysis (2022). Presidential Election Petition E003 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/49/eng@2022-08-30

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