Wafula v Odinga, Flag Bearer for Azimio La Umoja One Kenya Alliance & 5 others; Royal Media (Media Television) & 4 others (Subsequent Party)
The bottom line
#Non-parties cannot file applications or counterclaims in presidential election petitions.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant is a petitioner or respondent in any of the Presidential Election Petitions before the court
- 2.Whether the applicant has sought to participate as a friend of the court
- 3.Whether the application for waiver of fees and leave to prosecute a preliminary objection and counterclaim is merited
Key legal issues
#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.
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.
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
#- 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
#- 1.The application dated August 26, 2022 seeking waiver of fees; and leave to prosecute a preliminary objection and counterclaim 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 Election Petition) Rules, 2017
Relief refused
#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
#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.
The application dated August 26, 2022 seeking waiver of fees; and leave to prosecute a preliminary objection and counterclaim is hereby dismissed.
There shall be no orders as to costs.
Key timeline
#Practical implications
#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.
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.
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
#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
#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.