Legal Alert | Kenya | Effect of the Supreme Court Judgment (1 September 2017) as Regards the Presidential Election Petition, 2017 - Africa Legal Network

Legal Alert | Kenya | Effect of the Supreme Court Judgment (1 September 2017) as Regards the Presidential Election Petition, 2017


On 8 August 2017, Kenyans participated in a general election. Among the electoral posts up for grabs was the highest seat in the land, the office of the President.

On 11 August 2017 the Independent Electoral Boundaries Commission (IEBC) declared President Uhuru Kenyatta as the winner of the presidential election on the basis that he garnered 8,203,290 votes (54.27 percent) and Raila Odinga garnered 6,762,224 votes (44.74 percent).

On 18 August 2017, Raila Odinga filed a petition challenging the IEBC’s declaration of the incumbent president Uhuru Kenyatta as the president-elect following the August 8 general election.

Earlier today the Supreme Court of Kenya in keeping with the constitutional time limit of fourteen days to render a final decision, by a majority, annulled the August 8 presidential elections. As a result of the very tight timelines the Supreme Court judges promised to publish their detailed judgment within 21 days.

President Uhuru Kenyatta has stated that he respects the Supreme Court’s verdict.

As far as we are aware this judgment is the first in Africa where a court of law has annulled the result of a presidential election. This unprecedented decision is seen as one that entrenches the rule of law in Kenya, and is a further indication of the development of Kenya as an increasingly stable and politically mature country.

The judgment against an incumbent president in itself without going into the merits speaks volumes about judicial independence and the important role an independent judiciary can play in holding the executive and administrative bodies in check.

What next?

The Supreme Court in adherence with Article 140 (3) of the Constitution of Kenya, 2010, declared that a fresh election be held within sixty days from 1 September 2017.

The President and the Government as a whole remain in power and can exercise the powers vested in them except that the President cannot undertake the following, pursuant to Article 134 of the Constitution of Kenya, 2010:

i) the nomination or appointment of the Judges of the Superior Courts;

ii) the nomination or appointment of any other public officer whom the Constitution or legislation requires the President to appoint;

iii) the nomination or appointment or dismissal of Cabinet Secretaries and other State or Public Officers;

iv) the nomination or appointment or dismissal of a High Commissioner, Ambassador, or Diplomatic or Consular representative;

v) exercise the power of mercy; and

vi) exercise the authority to confer honours in the name of the people and the Republic.Below we set out a timetable of events that will unfold in the coming weeks.

Should you have any questions on this legal alert, please do not hesitate to contact Karim S. Anjarwalla.

Karim S. Anjarwalla
Managing Partner

The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.