Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtAllowedPresidential Election Petition E005 of 2022

Odinga & another v Independent Electoral and Boundaries Commission & 8 others

Supreme Court of Kenya
29 August 2022
600 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Supreme Court used its inherent power to allow late affidavits for fairness.

What this practically means

#

In a presidential election petition, three IEBC officials were accused of conspiring to alter election results. The rules didn't allow them to file a response at that stage. But the Supreme Court said the allegations were serious and fairness demanded they be heard. So the court used its special power to let them submit their side of the story.

Executive summary

#
This is a ruling by the Supreme Court of Kenya on a notice of motion application dated August 28, 2022, filed by the 5th respondent (Juliana Cherera and others, members of the 1st respondent, IEBC). The application sought to admit on record replying affidavits of Juliana Cherera, Justus Nyangaya, Francis Wanderi, and Irene Masit. The applicants argued that the 2nd, 3rd, and 4th respondents had alleged in their replying affidavits that all IEBC members attended a meeting with a delegation from the National Security Advisory Committee (NSAC) to subvert the will of the people by altering presidential election results. The applicants contended that unless allowed to file responses, they would suffer great prejudice. The court found that rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 does not provide for further affidavits. However, considering the serious nature of the allegations and the need for fairness and justice, the court deemed this an exceptional circumstance. It invoked its inherent powers under rule 4(2) of the Rules and section 3A of the Supreme Court Act to allow the admission of the further affidavits. The court ordered that the notice of motion be allowed with no order as to costs.

Questions the Court framed

#

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

  1. 1.Whether the further affidavits of Juliana Cherera, Justus Nyangaya, Francis Wanderi and Irene Masit should be admitted on record

Key legal issues

#
01

Whether the court can admit further affidavits under rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017

Holding

Rule 17 does not provide for further affidavits, but the court may admit them in exceptional circumstances using its inherent powers.

Reasoning

The court noted that rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 contains no provision for further affidavits. However, the allegations made by the 2nd, 3rd, and 4th respondents in their responses were serious and occurred during the pendency of the matter. To ensure fairness and justice, the court deemed this an exceptional circumstance and invoked its inherent powers under rule 4(2) of the Rules and section 3A of the Supreme Court Act to allow the admission of the further affidavits.

Legal principles established

#
  • The Presidential Election Petition Rules do not allow further affidavits after the initial response.
  • The Supreme Court has inherent powers to admit affidavits in exceptional circumstances.
  • Serious allegations made during proceedings can be an exceptional circumstance.
  • Fairness and justice can override strict procedural rules.
  • The court may invoke section 3A of the Supreme Court Act and rule 4(2) of the Rules.
  • No order as to costs when an application is allowed in the interest of justice.

Court orders

#
  1. 1.The notice of motion dated August 28, 2022 be and is hereby allowed
  2. 2.There shall be no order as to costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M.K. KoomeCJ
Currently serving
majority

Wrote the judgment

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
Not specified in the judgment

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.

We deem this to be an exceptional circumstance considering all aspects of the matter. We hereby invoke the provisions of the Supreme Court (Presidential Election Petition) Rules, 2017 rule 4(2) as read together with section 3A of the Supreme Court Act (Act No 7 of 2011) on the inherent powers of the court, and allow the further affidavits to be admitted as applied for.
p. 3 Admission of further affidavits in exceptional circumstances

Key timeline

#
2022-08-28
Application filed by Juliana Cherera and others to admit further affidavits.
2022-08-28
Supreme Court ruling allowing the application under inherent powers.

Practical implications

#
For lawyers

Use inherent powers for late filings

When procedural rules bar a filing, argue exceptional circumstances and fairness. Cite rule 4(2) of the Supreme Court (Presidential Election Petition) Rules and section 3A of the Supreme Court Act. Be prepared to show serious prejudice if the filing is denied.

For businesses

Respond to serious allegations promptly

Even if internal rules or deadlines prevent you from responding, this ruling shows courts may allow late responses when allegations are grave. Ensure you document the reasons for the delay and the potential harm from not being heard.

For individuals

Your right to be heard in court

If you are accused of wrongdoing in a court case and the rules seem to block you from responding, you can ask the court to use its special power to let you reply. This is especially true when the accusations are serious and you would suffer unfairness.

Frequently asked questions

#
What is a further affidavit in Kenya's Supreme Court?+

A further affidavit is an additional sworn statement filed after the initial response. In presidential election petitions, rule 17 does not allow them, but the court can permit them in exceptional cases to ensure fairness.

Can the Supreme Court allow evidence after the deadline in Kenya?+

Yes, if the circumstances are exceptional. The court has inherent powers under the Supreme Court Act and its rules to admit late evidence when justice requires it, such as when serious allegations arise during the case.

Why did the court allow the affidavits in the Cherera case?+

The court found that the allegations against the IEBC officials were serious and could affect the outcome. Since the rules didn't provide for a further response, the court used its inherent powers to allow the affidavits to avoid unfairness.

What does this ruling mean for future elections in Kenya?+

It means that the Supreme Court will prioritize fairness over strict procedural rules when serious allegations surface. Parties in election disputes should act quickly but know that the court can bend the rules for justice.

Cite this brief

#

Cite this brief

Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 8 others", Case Analysis (2022). Presidential Election Petition E005 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/48/eng@2022-08-29

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