Odinga & another v Independent Electoral and Boundaries Commission & 9 others
The bottom line
#Court allows ICJ Kenya to file legal arguments as a neutral friend in presidential election petition.
What this practically means
#The Supreme Court of Kenya allowed the Kenyan Section of the International Commission of Jurists (ICJ Kenya) to act as a neutral friend of the court in a presidential election petition. ICJ Kenya will submit written legal arguments on novel issues like election technology and the standard of proof. No party opposed. The court said ICJ Kenya cannot make oral arguments, and each side pays its own costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What broad principles, consistent with articles 10, 38, 81, 86, and 138(3)(a), (b), and (c) of the Constitution, govern the use of technology in elections?
- 2.Considering legal reforms following the case of Moses Masika Wetangula v Musikari Nazi Kombo & 2 others Petition 12 of 2014 [2015] eKLR (amending section 87 of the Elections Act, 2011 and enacting the Election Offences Act, 2016) what is the requisite standard of proof in Kenyan election petitions? And what powers does an electoral court possess where 20 allegations imputing criminal conduct are pleaded in an election petition?
- 3.What are “appropriate reliefs” in the context of a presidential election petition?
- 4.What are the respective roles of the Commission and its Chairperson in presidential election result management under article 138(3)(c) and 10?
Key legal issues
#Whether ICJ Kenya should be admitted as amicus curiae in a presidential election petition.
The application is merited and allowed, as the applicant has relevant expertise and will confine itself to legal arguments on novel issues.
The court considered the application under rule 17A of the Supreme Court (Presidential Election Petition) Rules 2017 and rule 19 of the Supreme Court Rules 2020. It noted the guiding principles from Mumo Matemu, including that an amicus must be neutral, address novel legal points, and file timeously. No party opposed the application, and the applicant's intended arguments on election technology, standard of proof, appropriate reliefs, and roles of the Commission and Chairperson were deemed novel and within the scope of amicus intervention.
Legal principles established
#- An amicus curiae brief must be limited to legal arguments and filed on time.
- An amicus curiae must remain neutral and faithful to the law.
- The court can limit amicus participation to prevent partisanship.
- An amicus curiae is not entitled to costs in litigation.
- An amicus may address novel legal points not already covered by parties.
Court orders
#- 1.The application dated August 27, 2022 and lodged on even date by Kenyan Section of the International Commission of Jurists (ICJ Kenya) is allowed.
- 2.The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
- 3.Parties shall bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- rule 17A of the Supreme Court (Presidential Election Petition) Rules 2017, and rule 19 of the Supreme Court Rules 2020
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 27, 2022 and lodged on even date by Kenyan Section of the International Commission of Jurists (ICJ Kenya) is allowed.
The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
Parties shall bear their own costs.
An amicus brief should be limited to legal arguments.
The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
Key timeline
#Practical implications
#Amicus curiae practice clarified
When applying to appear as amicus curiae in Kenyan election petitions, ensure your brief is strictly legal, neutral, and filed early. The court may deny oral submissions. Also note that costs are not recoverable. Use this ruling to structure future amicus applications.
Election technology standards pending
Businesses involved in election technology should watch this case. The amicus will argue on constitutional principles governing technology use in elections. The court's eventual decision may set standards for vendors and service providers, affecting compliance and contracts.
Understanding the amicus role
An amicus curiae is a neutral expert who helps the court on complex legal issues. In this case, ICJ Kenya will write on election technology and proof standards. Individuals can expect clearer rules on how election disputes are handled, but the amicus does not represent any party.
Frequently asked questions
#What is an amicus curiae in Kenya?+
An amicus curiae, or 'friend of the court', is a neutral person or organization that provides legal expertise on issues not fully argued by the parties. In Kenya, the Supreme Court allows amicus briefs under specific rules, requiring neutrality and timeliness.
Can an amicus curiae make oral submissions in Kenya?+
Not automatically. In this case, the Supreme Court allowed ICJ Kenya to file written arguments but barred oral submissions. The court has discretion to limit amicus participation to prevent partisanship or delay.
What are the rules for amicus curiae in Kenyan Supreme Court?+
Under Supreme Court Rules 2020 and Presidential Election Petition Rules 2017, an amicus must be neutral, file a brief limited to legal arguments, address novel points, and apply timeously. The court may regulate participation and does not award costs to amici.
What was the ICJ Kenya case about in Kenya?+
ICJ Kenya applied to be amicus curiae in a presidential election petition to argue on four novel legal issues: election technology, standard of proof, appropriate reliefs, and roles of IEBC and its chairperson. The Supreme Court allowed the application.
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 9 others", Case Analysis (2022). Presidential Election Petition E005 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/46/eng@2022-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.