Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Waihiga (Intended Interested Party)
The bottom line
#No joinder of interested parties allowed in Kenya's presidential election petitions.
What this practically means
#The Supreme Court of Kenya dismissed a request by presidential candidate David Waihiga Mwaure to join an election petition as an interested party. The court ruled that the Presidential Election Petition Rules explicitly forbid such applications. Mwaure also failed to show he would be harmed if not joined, and his points could be raised by existing parties. No costs were awarded.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant, David Waihiga Mwaure, should be joined as an interested party to the presidential election petition.
Key legal issues
#Whether an applicant can be joined as an interested party in a presidential election petition.
No, such an application is prohibited by rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017.
The court considered the express provision of rule 17A(4) which categorically states that an application by any person as an interested party shall not be allowed in a presidential election petition. Additionally, the applicant failed to demonstrate any prejudice he would suffer if not enjoined, and the court found that his arguments could be adequately presented by other parties already in the petition.
Legal principles established
#- Rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017 absolutely prohibits joinder of interested parties in presidential election petitions.
- The court strictly enforces procedural rules in presidential petitions, leaving no room for exceptions.
- An applicant must demonstrate prejudice to be considered for joinder, but the rule bars it regardless.
- The court considers whether an applicant's arguments can be adequately presented by existing parties before allowing joinder, though the rule still applies.
- No costs are awarded when an application for joinder in a presidential election petition is dismissed.
Court orders
#- 1.The application dated August 26, 2022 and filed on August 27, 2022 seeking joinder of David Waihiga Mwaure as interested party to this petition is hereby dismissed.
- 2.There shall be no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Supreme Court (Presidential Petition) Rules 2017
Relief refused
#Joinder of David Waihiga Mwaure as an interested party
Rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017 prohibits such applications in a presidential election petition; the applicant did not demonstrate prejudice; and his arguments could be adequately argued by other parties.
Costs
There shall be no orders as to costs.
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.
The application dated August 26, 2022 and filed on August 27, 2022 seeking joinder of David Waihiga Mwaure as interested party to this petition is hereby dismissed.
rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules 2017, which provide that an application by any person as an interested party shall not be allowed in a presidential election petition.
none of the intended interested party’s averments demonstrate the prejudice he will suffer if he was not enjoined.
Key timeline
#Practical implications
#Strict enforcement of election petition rules
Advise clients that in presidential election petitions, there is no opportunity to join as an interested party. All arguments must be channeled through the original petitioner or respondent. Any application for joinder will be immediately dismissed, wasting time and resources. Ensure clients understand the absolute nature of rule 17A(4).
No direct participation in election petitions
Businesses cannot intervene as interested parties in presidential election petitions. If you wish to influence the outcome, you must engage through other means such as public advocacy, supporting the original parties, or filing amicus briefs (if permitted). Direct joinder is not an option.
No voice as interested party in presidential petitions
If you are a candidate or voter wanting to be heard in a presidential election petition, you cannot apply to join as an interested party. Instead, you must support the petition or respondent's case, or rely on the court's ability to hear your arguments through existing parties. The rule is clear and final.
Frequently asked questions
#Can I join as an interested party in a presidential election petition in Kenya?+
No, under rule 17A(4) of the Supreme Court (Presidential Election Petition) Rules 2017, such applications are not allowed. The court dismissed a similar request by a candidate in 2022.
What is rule 17A(4) of the Presidential Election Petition Rules in Kenya?+
It is a rule that prohibits any person from applying to be joined as an interested party in a presidential election petition. The Supreme Court upheld this rule in David Waihiga Mwaure v. IEBC (2022).
Can a presidential candidate join an election petition as an interested party in Kenya?+
No, even a presidential candidate cannot join. The court dismissed David Waihiga Mwaure's application, ruling that the rules expressly forbid it, and his arguments could be raised by other parties.
What happens if I try to join a presidential election petition as an interested party in Kenya?+
The court will dismiss the application immediately, citing the prohibition in rule 17A(4). You may also be ordered to pay costs, though in this case no costs were awarded.
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Waihiga (Intended Interested Party)", Case Analysis (2022). Presidential Election Petition E005 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/52/eng@2022-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.