Odinga & another v Independent Electoral and Boundaries Commission & 2 others
The bottom line
#Affidavits for interim requests in election petitions have separate deadlines from the main petition.
What this practically means
#In a presidential election petition, the Supreme Court ruled that affidavits filed to support an interim application (like a request for access to election data) are not bound by the strict time limits that apply to affidavits supporting the main petition. The court dismissed an attempt to remove those affidavits from the record, saying the timing rules only cover the petition itself. The question of whether the affidavits introduced new evidence will be decided later when the interim application is heard.
Executive summary
#Key legal issues
#Whether affidavits filed in support of an interlocutory application in a presidential election petition are subject to the time limits under rule 10 of the Supreme Court (Presidential Election Petition) Rules.
The affidavits are not subject to rule 10 time limits as they support an interlocutory application, not the petition itself.
The court examined the application and noted that the affidavits sought to be expunged were explicitly described as supporting the petitioners' interlocutory application dated August 24, 2017, not the petition. The court found no merit in the claim that they were filed out of time under rule 10, as that rule applies to affidavits supporting the petition. The question of whether they introduced new evidence was left for determination when considering the interlocutory application.
Legal principles established
#- Rule 10 time limits apply only to affidavits supporting the main election petition, not to those supporting interlocutory applications.
- Affidavits filed for interim requests are governed by separate procedural rules.
- A motion to expunge affidavits cannot be used to pre-judge whether they introduce new evidence; that issue is for the main application.
- The court distinguishes between affidavits supporting the petition and those supporting interlocutory applications.
- The burden is on the applicant to show that affidavits were filed out of time under the applicable rule.
- Costs in such motions follow the outcome of the main case (costs to abide the cause).
Court orders
#- 1.The notice of motion dated August 26 is hereby dismissed.
- 2.Costs to abide the cause.
- Jurisdiction invoked
- Rule 10 of the Supreme Court (Presidential Election Petition) Rules
Key timeline
#Practical implications
#Distinguish petition affidavits from interlocutory ones
When drafting election petitions, ensure affidavits supporting the main petition strictly comply with rule 10 deadlines. However, affidavits for interim applications (e.g., for access to data) are not bound by that rule. Use this distinction to protect your client's evidence from being struck out prematurely. Also, argue that new evidence issues should be addressed at the hearing of the interim application, not in a motion to expunge.
Election petition procedural clarity
Businesses involved in election monitoring, data provision, or as third-party witnesses should note that interim applications have separate procedural rules. This ruling means evidence submitted for such applications will not be thrown out for timing issues. If you are asked to provide an affidavit for an interim request, you can do so without worrying about the strict deadlines that apply to the main petition.
Know your rights in election disputes
If you are a petitioner in an election dispute, you can file supporting affidavits for interim requests (like seeking access to election materials) without being penalized for missing the main petition's deadline. This ensures you can urgently seek court orders to preserve evidence or obtain information, and your evidence will be considered on its merits when the interim application is heard.
Frequently asked questions
#What is rule 10 of the Supreme Court (Presidential Election Petition) Rules in Kenya?+
Rule 10 sets the time limit for filing affidavits in support of a presidential election petition. The Supreme Court clarified that this rule does not apply to affidavits supporting interim applications, which have their own procedural timeline.
Can affidavits be filed late in a Kenyan presidential election petition?+
Only if they support an interlocutory (interim) application, not the main petition. The Supreme Court ruled that rule 10 deadlines only apply to the petition itself, so affidavits for interim requests can be filed later without being automatically struck out.
What happens if evidence is introduced late in an election petition in Kenya?+
The court will consider whether the evidence supports an interim application or the main petition. If it supports an interim application, the timing is not an issue. The question of whether it introduces new evidence is decided when the interim application is heard, not in a motion to expunge.
How to challenge affidavits in a Kenyan election petition?+
You can file a motion to expunge the affidavits. However, the court will first check whether the affidavits support the main petition or an interim application. If they support an interim application, they are not subject to the petition's time limits, and the motion will likely fail.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Talam v Barngetuny (Environment and Land Case 121 of 2021 & 154 of 2022 (Consolidated)) [2026] KEELC 5020 (KLR)[2026] KEELC 5020 (KLR)21 Jul 2026
- Talam v Barngetuny (Environment and Land Case 121 of 2021 & 154 of 2022 (Consolidated)) [2026] KEELC 4629 (KLR)[2026] KEELC 4629 (KLR)21 Jul 2026applied
- Letting v Ngetich (Legal Representative of the Estate of the Late John Kipkemboi - Deceased) (Environment and Land Case E016 of 2023) [2026] KEELC 307 (KLR)[2026] KEELC 307 (KLR)27 Jan 2026applied
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2017). Presidential Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/37/eng@2017-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.