March BBI hearing.
Chief Justice Martha Koome (C) flanked by Dep CJ- Philomena Mwilu (3L) Judge Smokin
Wanjala (2L), Judge Isaac Lenaola (L), Judge Mohamed Ibrahim (3R), Judge Njoki Ndungu (2R) and Judge
William Ouko (R) are seen during a session at the Supreme Court in Nairobi on March 31, 2022
Supreme Court Judges during proceedings of the Presidential Election Petition in 2022
Kenya's Supreme Court judges (L-R) Isaac Lenaola, Smokin Wanjala, DCJ Philomena
Mwilu, CJ Martha Koome, Mohamed Ibrahim, Njoki Ndung'u and William Ouko during day one of hearing
the consolidated presidential election petition on August 31,2022
Litigants follow the Presidential Election Petitions proceedings on August 2022.
Following the general elections conducted in August 2022, the Court successfully
handled nine (9) presidential election petitions within the mandatory constitutional timelines, with
two petitions being struck out at a preliminary stage.
In Odinga & 16 others vs. Ruto & 10 others; Law Society of Kenya & 4 others
(Amicus Curiae)
Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated);
[2022] KESC 54 (KLR), the Court upheld the results declared by IEBC, invariably determining that the
technology deployed by the IEBC for the conduct of the 2022 General Election met the standards of
integrity, verifiability, security, and transparency under Article 86(a) of the Constitution. It
also held that the power to verify and tally presidential election results received at the National
Tallying Centre vests not in the Chairperson of IEBC but in the Commission itself; in a presidential
election petition, it can only issue orders stipulated under Article 140 of the Constitution. In
that, it can either declare the election of the President-elect invalid, nullify the election and
direct IEBC to hold a fresh election or declare the election of the President-elect as valid.
In Hon. Attorney-General & 2 others vs. David Ndii & 79 others; Prof.
Rosalind Dixon & 7 others (Amicus Curiae)
SC Petition No. 12 of 2021 Consolidated with Petition No. 11 & 12 of 2021; [2022] KESC 8 (KLR), (BBI
Case) the Court unanimously held that the basic structure doctrine is not applicable in Kenya and
the President cannot initiate Constitutional amendments through the popular initiative under Article
257. As regards presidential immunity, the Court found that civil proceedings cannot be instituted
in any case against the President or the person performing the functions of the office of the
President during their tenure of office in respect of anything done or not done under the
Constitution of Kenya 2010.
In Institute for Social Accountability & Others vs. National Assembly &
Others,
SC Petition No. 1 of 2018; [2022] KESC 39 (KLR), the Court found that the CDF (Amendment) Act, 2013
offended Article 96 of the Constitution as it concerned County Governments requiring the involvement
of both houses of Parliament. Additionally, it was determined that the CDF Act 2013 violated the
division of functions between the National and County levels of Government and the constitutional
revenue-sharing formula between the two levels of government.
In Hon. Gitobu Imanyara & 2 Others vs. The Attorney General
SC Petition 15 of 2017 [2022] KESC 78 (KLR), the Court held that once liability for a constitutional
infringement is admitted, a court must then assess the available remedies under Article 23. It
further directed that remedies, even where not considered compensatory, must meaningfully vindicate
the rights and freedoms of a claimant. Additionally, it set out the guiding parameters to guide the
courts in assessing damages for constitutional violations.