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Supreme CourtDismissedPresidential Election Petition 1 of 2022

Wafula v Odinga, Flag Bearer for Azimio La Umoja One Kenya Alliance & 5 others; Royal Media (Media Television) & 4 others (Subsequent Party)

Supreme Court of Kenya
30 August 2022
403 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

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Non-parties cannot file applications or counterclaims in presidential election petitions.

What this practically means

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The Supreme Court of Kenya dismissed an application from a person who was not a party to any presidential election petition. The applicant wanted a fee waiver and permission to file a preliminary objection and counterclaim. The court ruled that only petitioners, respondents, or those who have sought to participate as friends of the court have standing to make such requests. Since the applicant did not meet any of these conditions, the application was dismissed without costs.

Executive summary

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This is a ruling by the Supreme Court of Kenya on an application by Benjamin Barasa Wafula, filed on August 26, 2022. The applicant sought a waiver of court fees totaling Kshs 1,004,000 and leave to prosecute a preliminary objection and counterclaim as a pauper. He claimed he was employed by Pan African Paper Mills (EA) Company Ltd from 1983 to 2003, when his employment was terminated after he supported a government initiative to raise employees' salaries. He alleged that his termination crippled his financial status. His preliminary objection and counterclaim alleged manipulation of the IEBC tallying server by James Orengo, Charity Ngilu, Stephen Kalonzo, and Ali Hassan Joho, whom he described as commanders of the Azimio la Umoja One Kenya Kwanza Alliance. The court considered the application under the Supreme Court (Presidential Election Petition) Rules, 2017. It found that the applicant was not a petitioner or respondent in any of the Presidential Election Petitions before it, nor had he sought to participate as a friend of the court. Consequently, the court held that the application was not merited and dismissed it. The court made no order as to costs. The ruling was delivered on August 30, 2022, by a full bench of seven judges, with Chief Justice M.K Koome authoring the judgment.

Questions the Court framed

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

  1. 1.Whether the applicant is a petitioner or respondent in any of the Presidential Election Petitions before the court
  2. 2.Whether the applicant has sought to participate as a friend of the court
  3. 3.Whether the application for waiver of fees and leave to prosecute a preliminary objection and counterclaim is merited

Key legal issues

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01

Whether a person who is not a party to a Presidential Election Petition can seek waiver of court fees and leave to prosecute a preliminary objection and counterclaim in those proceedings.

Holding

Such a person has no standing to bring such an application as they are not a petitioner, respondent, or friend of the court in the election petitions.

Reasoning

The court examined the applicant's status in relation to the Presidential Election Petitions before it. It found that the applicant was neither a petitioner nor a respondent in any of those petitions, and had not sought to participate as a friend of the court. Consequently, the court held that the application was without merit and dismissed it.

Legal principles established

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  • Only petitioners or respondents in a presidential election petition have standing to file applications.
  • A person who has not sought to participate as a friend of the court cannot intervene in election petitions.
  • The court will not entertain preliminary objections or counterclaims from non-parties.
  • Waiver of court fees is only available to parties properly before the court.
  • Lack of standing leads to dismissal of the application without costs.

Court orders

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  1. 1.The application dated August 26, 2022 seeking waiver of fees; and leave to prosecute a preliminary objection and counterclaim is hereby dismissed.
  2. 2.There shall be no orders as to costs.

The bench

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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
Supreme Court (Presidential Election Petition) Rules, 2017

Relief refused

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Waiver of court fees totaling Kshs 1,004,000

The applicant is not a petitioner or respondent in any Presidential Election Petition before the court and has not sought to participate as a friend of the court.

Leave to prosecute a preliminary objection and counterclaim

The application is not merited as the applicant lacks standing in the Presidential Election Petitions before the court.

Costs

There shall be no orders as to costs.

Quotable passages

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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 applicant is not a petitioner and/or has not been sued as a respondent in any of the Presidential Election Petitions before us, he has also not sought to participate as a friend of the court. Consequently, we find that the application before us is not merited and is therefore, dismissed.
p. 3 Locus standi in Presidential Election Petitions
The application dated August 26, 2022 seeking waiver of fees; and leave to prosecute a preliminary objection and counterclaim is hereby dismissed.
p. 3 Final orders
There shall be no orders as to costs.
p. 3 Costs order

Key timeline

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2022-08-26
Benjamin Barasa Wafula filed an application seeking waiver of fees and leave to prosecute a preliminary objection and counterclaim.
2022-08-30
The Supreme Court of Kenya dismissed the application, ruling that the applicant had no standing as he was not a party to any presidential election petition.

Practical implications

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For lawyers

Advise clients on standing in election petitions

Ensure clients understand that only petitioners, respondents, or those granted amicus curiae status can file applications in presidential election petitions. Advise clients to seek proper joinder or apply for friend-of-the-court status before attempting any procedural steps. This ruling reinforces strict locus standi requirements.

For businesses

Election petitions are not for business disputes

Businesses cannot use presidential election petitions to advance commercial grievances or counterclaims. If a business has a dispute related to an election, it must pursue separate legal proceedings in the appropriate forum. This case confirms that election petitions are strictly limited to electoral matters involving candidates and political parties.

For individuals

Use proper channels for personal claims

Individuals with personal grievances, such as employment disputes, cannot piggyback on presidential election petitions. The court will not entertain applications from non-parties. If you have a claim, file it in the correct court (e.g., Employment and Labour Relations Court) rather than attempting to join an election petition.

Frequently asked questions

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Can I file a case in a Kenyan presidential election petition if I am not a candidate?+

No. Only the petitioner (who challenges the election) and the respondents (the declared winner and the electoral commission) have standing. Other individuals or entities cannot file applications or counterclaims unless they first seek and are granted permission to participate as a friend of the court.

What is a friend of the court in Kenyan election petitions?+

A friend of the court, or amicus curiae, is a person or organization that is not a party but offers expertise or perspective to assist the court. In presidential election petitions, you must formally apply to be admitted as amicus. Without that status, you cannot file any documents or make submissions.

Can I get a fee waiver to file a counterclaim in a Kenyan election petition?+

Only if you are already a proper party to the petition (petitioner or respondent). A non-party cannot seek a fee waiver because they have no standing to file any pleading. The court will dismiss such an application outright, as happened in this case.

What happens if I file an application in a Kenyan case I am not part of?+

The court will likely dismiss it for lack of standing. You must be a party to the case (e.g., plaintiff, defendant, or intervener) or have been granted amicus status. Filing as a stranger wastes time and may result in no costs being awarded, as the court did here.

Cite this brief

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Cite this brief

Caselaw, "Wafula v Odinga, Flag Bearer for Azimio La Umoja One Kenya Alliance & 5 others; Royal Media (Media Television) & 4 others (Subsequent Party)", Case Analysis (2022). Presidential Election Petition 1 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/51/eng@2022-08-30

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