Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Mwaura (Intended Respondent)
The bottom line
#A presidential candidate can join an election petition as an interested party if they have a personal stake.
What this practically means
#The Supreme Court ruled that Michael Wainana Mwaura, a presidential candidate who got 13,257 votes, could join the election petition case as an interested party. He had a direct stake in the outcome. However, he could not be a neutral friend of the court because he was clearly taking sides.
Executive summary
#Key legal issues
#Whether the applicant meets the criteria for joinder as an interested party
The applicant, as a candidate in the presidential election, has a definitive stake in the outcome and meets the criteria for joinder as an interested party.
The court applied the principles from Francis Karioki Muruatetu & another v Republic, requiring a personal interest, prejudice if not joined, and submissions different from other parties. The applicant, being a presidential candidate who garnered 13,257 votes, demonstrated a clear and proximate interest in the election outcome, and his submissions were not a replication of other parties' arguments.
Whether the applicant meets the criteria for admission as amicus curiae
The applicant fails the neutrality and impartiality requirement for amicus curiae and cannot be admitted in that capacity.
The court applied the principles from Trusted Society of Human Rights Alliance v Mumo Matemu, which require amicus curiae to be neutral and impartial. The applicant's affidavit and supporting materials opposed the petition, showing he was partisan and biased against the petitioners, thus failing the test.
Legal principles established
#- An interested party must show a personal interest, risk of prejudice, and unique submissions.
- An amicus curiae must be neutral and impartial; a partisan applicant cannot be admitted.
- A presidential candidate has a definitive stake in the election outcome for joinder purposes.
- The court applied the Muruatetu and Trusted Society precedents for joinder and amicus criteria.
- Costs of the application abide in the cause, meaning they follow the final outcome.
- Submissions by an interested party may be limited in length and time to avoid duplication.
Court orders
#- 1.The application is hereby allowed to the extent that the applicant is admitted as an interested party
- 2.Applicant written submissions to be filed by 8am on the August 28, 2017 and limited to 5 pages only, of font 12, 1.5 spacing
- Jurisdiction invoked
- Rule 22 of the Supreme Court (Presidential Election Petition) Rules, 2017 and the inherent power of the court
Key timeline
#Practical implications
#Joinder criteria clarified
When seeking to join as an interested party, clearly demonstrate a personal stake in the case that is distinct from other parties. Show that you will suffer prejudice if not joined and that your submissions add unique value. For amicus curiae, maintain strict neutrality; any partisan stance disqualifies you.
Election petition access
Businesses that have a direct interest in an election outcome—for example, as suppliers or contractors to a candidate—may use this ruling to seek joinder in related court cases. Ensure your interest is clearly identifiable and not merely peripheral. Legal advice on standing is essential.
Your right to participate
If you are a candidate or have a direct stake in an election petition, you can ask the court to be added as an interested party. You must show why your participation matters and that your arguments are not the same as others. However, you cannot be a neutral friend of the court if you are taking sides.
Frequently asked questions
#What is the difference between an interested party and an amicus curiae in Kenya?+
An interested party has a personal stake in the case and can argue for their own interests. An amicus curiae is a neutral friend of the court who provides expert opinion without taking sides. In this case, the candidate was allowed as interested party but not as amicus because he was partisan.
Can a presidential candidate join an election petition in Kenya?+
Yes, if the candidate can show a personal stake in the outcome. In Michael Wainana Mwaura v Raila Odinga & another, the Supreme Court allowed a candidate who got 13,257 votes to join as an interested party because he had a direct interest in the election results.
How to become an interested party in a Kenyan Supreme Court case?+
You must file an application showing your personal interest, how you will be prejudiced if not joined, and that your submissions are not a repetition of others. The court will assess if your stake is proximate and identifiable. Follow the rules from the Muruatetu case.
What was the Michael Wainana Mwaura case about in Kenya?+
It was a Supreme Court ruling on 27 August 2017 where a presidential candidate sought to join the main election petition (Raila Odinga v IEBC). The court allowed him as an interested party but refused him as amicus curiae because he was not neutral.
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Mwaura (Intended Respondent)", Case Analysis (2017). Presidential Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/38/eng@2017-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.