Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others (Amicus Curiae)
The bottom line
#Supreme Court allows experts to file written briefs in presidential election petition.
What this practically means
#Three people asked the Supreme Court of Kenya to help in a presidential election case by filing a written brief. The court agreed, saying their brief met the legal test for such participation. However, the court limited their role: they can only submit written arguments, not speak in court. This keeps the process focused while still allowing expert input.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants satisfy the test for admission as amici curiae in the Presidential Election Petition
Key legal issues
#Whether the applicants meet the criteria for admission as amici curiae in a presidential election petition.
The applicants satisfied the test established by precedent and the requirements of the Supreme Court (Presidential Election Petition) Rules, 2017 and Supreme Court Rules, 2020.
The court reviewed the application, supporting affidavit, and the amici brief. It found that the contents of the brief demonstrated that the applicants met the established test from Trusted Society and Muruatetu, as well as the procedural requirements under rule 17A of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020. Consequently, the court admitted them as amici curiae but limited their participation to written submissions only.
Legal principles established
#- Amici curiae must meet a legal test set in earlier Supreme Court cases.
- The court can limit amici to written submissions only.
- Supreme Court rules for presidential petitions allow amici under rule 17A.
- The court reviews the amici brief to decide if it adds value.
- No oral submissions are allowed unless the court specifically permits them.
Court orders
#- 1.The applicants are hereby admitted as amici curiae in Petition No E005 of 2022.
- 2.The amici will not make oral submissions and shall rely solely on their written Brief.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 10, 22, 38, 140, 159 and 163 of the Constitution; sections 3A and 12 of the Supreme Court Act, 2011; and rule 17A of the Supreme Court (Presidential Election Petition) Rules, 2017
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.
Consequently, the applicants are hereby admitted as amici curiae in Petition No E005 of 2022. The amici will not make oral submissions and shall rely solely on their written Brief.
On the basis of the contents of the said Brief, we are satisfied that the application satisfies the test established by this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others, SC Petition No 12 of 2013; [2015] eKLR and Francis Muruatetu & another v Republic and 5 others, SC Petition No 15 & 16 of 2015 (Consolidated): [2016] eKLR for admission of Amici Curiae
Key timeline
#Practical implications
#Limit amici to written briefs
When applying to appear as amicus curiae in a presidential election petition, expect the court to restrict participation to written submissions only. Prepare a comprehensive written brief that clearly meets the Trusted Society and Muruatetu test. Oral advocacy is unlikely to be allowed, so invest in drafting persuasive written arguments.
Expert input in election cases
If your organization has specialized expertise relevant to a presidential election petition, you can seek to file a written brief as an amicus curiae. The Supreme Court will consider your application if your brief adds value. However, you will not be allowed to speak in court. This is a low-cost way to influence legal outcomes without full litigation.
Limited role for third parties
As an individual, you can ask the Supreme Court to submit a written opinion in a presidential election case, but you must show your input is useful. The court will decide quickly—here, in just one day. You will not get to argue orally. This keeps the process efficient while still allowing public interest voices to be heard.
Frequently asked questions
#What is an amicus curiae in Kenya's Supreme Court?+
An amicus curiae, or 'friend of the court,' is a person or group not a party to a case who provides expert information or arguments to help the court decide. In Kenya, the Supreme Court allows this in presidential election petitions if the applicant meets a legal test and files a written brief.
How do you become an amicus curiae in a Kenyan presidential election petition?+
You must file an application with the Supreme Court, supported by an affidavit and a written brief. The court checks if your brief meets the test from Trusted Society v Mumo Matemo and Muruatetu cases. If approved, you can submit written arguments but usually cannot speak in court.
Can amici curiae make oral submissions in Kenya's Supreme Court?+
Not automatically. In this case, the court specifically ordered that the amici would not make oral submissions and would rely solely on their written brief. The court has discretion to allow oral arguments, but it is not guaranteed, especially in fast-tracked presidential election petitions.
What rules govern amici curiae in Kenyan presidential election petitions?+
Rule 17A of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020 set the procedural requirements. The court also applies the test from Trusted Society v Mumo Matemo and Muruatetu cases to decide if the amici's brief adds value.
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others (Amicus Curiae)", Case Analysis (2022). Presidential Election Petition E005 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/44/eng@2022-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.