Okiya Omtatah Okoiti v Independent Electoral and Boundaries Commission & another; Uhuru Muigai Kenyatta & 7 others (Interested Parties)
The bottom line
#Supreme Court cannot hear presidential election disputes before results are declared.
What this practically means
#The Supreme Court of Kenya ruled that it cannot hear a case challenging a presidential election before the results are announced. The court also said that anyone wanting to interpret the Constitution must first go to the High Court, not directly to the Supreme Court. The petitioner was ordered to pay costs because the case was not considered public interest litigation.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction to hear and determine this Petition.
Key legal issues
#Whether the Supreme Court has jurisdiction to hear and determine a petition challenging the validity of a fresh presidential election before the declaration of results.
The Supreme Court lacks jurisdiction to hear and determine such a petition because its exclusive original jurisdiction under Article 163(3)(a) only arises after the declaration of results of the presidential election, as provided under Article 140(1).
The court examined Article 163(3)(a) and Article 140(1) of the Constitution. It held that the Supreme Court's exclusive original jurisdiction to determine disputes relating to the election of the President is limited to the circumstances contemplated in Article 140(1), which requires a petition to be filed within seven days after the declaration of results. The court distinguished between its power to pronounce on a constitutional question and its power to determine the validity of an election, stating that it cannot anticipate the validity of a presidential election. Since the petition was filed before the declaration of results of the 26th October 2017 election, the court lacked jurisdiction.
Whether the Supreme Court has original jurisdiction to interpret constitutional provisions relating to presidential elections outside the context of a challenge to the validity of an election under Article 140.
The Supreme Court does not have original jurisdiction to interpret constitutional provisions relating to presidential elections outside the context of a challenge under Article 140; such interpretation falls within the original jurisdiction of the High Court under Article 165(3)(d).
The court held that Article 163(3) does not oust the High Court's original jurisdiction to interpret the Constitution under Article 165(3)(d). The Supreme Court's exclusive original jurisdiction under Article 163(3)(a) is limited to disputes relating to the election of the President arising under Article 140. A party seeking general interpretation of Articles 138, 139, and 140 cannot bypass the High Court and come directly to the Supreme Court.
Whether a petition challenging a presidential election can be classified as public interest litigation for the purpose of avoiding an adverse costs order.
Not every election petition can be classified as public interest litigation; each case must be determined on its own merits, and a petition filed by a politically partisan individual in furtherance of private interests will not be so classified.
The court considered the general principle that costs follow the event, but noted that it has departed from this principle in exceptional circumstances, including in public interest litigation. However, the court found that the petitioner, having actively participated in and supported the election agenda of the 2nd Interested Party, did not file the petition for the distinct objective of furthering the public interest. Therefore, the petition was not classified as public interest litigation, and the petitioner was ordered to bear the costs.
Legal principles established
#- Supreme Court's exclusive jurisdiction for presidential election disputes only arises after results are declared under Article 140(1).
- A party cannot bypass the High Court to seek constitutional interpretation directly from the Supreme Court.
- Not every election petition qualifies as public interest litigation; costs may be awarded against a partisan petitioner.
- The High Court retains original jurisdiction to interpret the Constitution under Article 165(3)(d).
- The Supreme Court cannot determine the validity of a presidential election before it is held and results declared.
Court orders
#- 1.The Petition dated October 27, 2017, is hereby struck out for want of Jurisdiction
- 2.The petitioner shall bear the Costs of this Petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition No. 504 of 2017
- Jurisdiction invoked
- Article 163(3)(a) of the Constitution
Relief refused
#All declarations and orders sought by the petitioner challenging the fresh presidential election of 26th October 2017
The court lacked jurisdiction to hear and determine the Petition as it was filed before the declaration of results of the election.
Costs
The petitioner shall bear the Costs of this Petition.
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 Supreme Court cannot determine the validity or otherwise of a presidential election, before the same is held and the results thereof declared.
If his intention is to seek the interpretation of articles 138, 139 and 140 of the Constitution, the petitioner cannot leapfrog the High Court and come directly to the Supreme Court.
The Petition dated October 27, 2017, is hereby struck out for want of Jurisdiction; The petitioner shall bear the Costs of this Petition.
We are not convinced that this Petition was filed for the distinct objective of furthering the Public Interest.
Key timeline
#Practical implications
#Timing and venue for election challenges
File presidential election petitions only after results are declared, within seven days. For constitutional interpretation, start at the High Court. This case confirms strict jurisdictional limits and warns against premature filings. Also, assess whether your client's case truly serves public interest to avoid adverse costs orders.
Costs risk in election-related cases
If you fund or support election litigation, note that courts may view partisan involvement as private interest. This can lead to costs being awarded against you even if the case appears public-spirited. Ensure any legal challenge has clear public benefit and avoid direct political alignment to reduce financial exposure.
Know which court to approach
If you want to challenge a presidential election, wait until results are announced. For general constitutional questions, go to the High Court first. Filing in the wrong court wastes time and money. Also, if you have political ties, the court may order you to pay the other side's legal fees.
Frequently asked questions
#Can I challenge a presidential election before results are declared in Kenya?+
No. The Supreme Court ruled that its jurisdiction to hear presidential election disputes only arises after the results are declared. Any challenge before that is premature and will be struck out for lack of jurisdiction.
What is the Supreme Court's jurisdiction in presidential election disputes in Kenya?+
The Supreme Court can only hear presidential election petitions filed within seven days after the declaration of results, as per Article 140(1) of the Constitution. It cannot hear anticipatory challenges or general constitutional questions.
Can I go directly to the Supreme Court for constitutional interpretation in Kenya?+
No. The High Court has original jurisdiction to interpret the Constitution under Article 165(3)(d). You must start there. The Supreme Court only hears appeals or specific presidential election disputes after results are declared.
When can costs be awarded against a petitioner in a public interest case in Kenya?+
Costs can be awarded if the court finds the petition was not filed for genuine public interest but for private or partisan reasons. In this case, the petitioner's political support for a candidate led to a costs order against him.
Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Independent Electoral and Boundaries Commission & another; Uhuru Muigai Kenyatta & 7 others (Interested Parties)", Case Analysis (2020). Petition 18 of 2016. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/68/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.