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Independent Electoral Commission of Kenya v Kiwanuka and Another (Application No.47 of 2022)

East African Court of Justice · [2024] EACJ 13 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to intervene in Reference No. 39 of 2022 pending before the East African Court of Justice
Decision
Application for intervention by the Independent Electoral and Boundaries Commission of Kenya declined

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice dismissed the application by the Independent Electoral and Boundaries Commission of Kenya to intervene in Reference No. 39 of 2022. The Court held that while the Commission qualifies as a legal person with standing to intervene under Article 40 of the Treaty, it failed to meet the threshold for intervention under Rule 59(4) because its interest was not distinct from that of the Attorney General of Kenya, its proposed intervention would duplicate the existing defence, and allowing intervention would create procedural inefficiencies without adding unique insights to the proceedings.

Outcome

Application for intervention by the Independent Electoral and Boundaries Commission of Kenya declined

Facts

On 9 August 2022, presidential elections were held in Kenya and results were declared on 15 August 2022 by the Independent Electoral and Boundaries Commission of Kenya. On 22 August 2022, Male H. Mabirizi K. Kiwanuka filed Reference No. 39 of 2022 in the East African Court of Justice against the Attorney General of Kenya, challenging the conduct of the Commission's Chairperson in declaring election results. The Reference alleged violations of Treaty provisions and sought annulment of the election results. On 19 December 2022, the Commission filed an application seeking leave to intervene in the Reference, arguing that it had a direct interest in the matter as the allegations concerned its constitutional mandate and the conduct of its officials. The 1st Respondent opposed the application, arguing that the Commission lacked standing and that its interests were already represented by the Attorney General.

Issues

  1. Whether the Independent Electoral and Boundaries Commission of Kenya qualifies as a legal person with standing to intervene under Article 40 of the Treaty for the Establishment of the East African Community.
  2. Whether the preliminary objection raised by the 1st Respondent constitutes a challenge to the jurisdiction of the Court.
  3. Whether the Independent Electoral and Boundaries Commission of Kenya satisfies the threshold for intervention under Article 40 of the Treaty and Rule 59(4) of the East African Court of Justice Rules.

Orders

  • Application for intervention dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Intervention — Distinction between Article 30 References and Article 40 Intervention Applications
Article 30 of the Treaty for the Establishment of the East African Community governs the initiation of substantive actions to challenge the legality of acts or omissions and prescribes who can invoke the jurisdiction of the Court in a Reference. Article 40 provides for intervention as a distinct procedural mechanism allowing an entity to join ongoing proceedings. The requirements for bringing a Reference under Article 30 are separate from the procedural prerequisites for intervention under Article 40.
Intervention — Standing of State Organs to Intervene
A state organ or institution may in principle seek to intervene on behalf of the state under Article 40 of the Treaty, provided it can demonstrate a legitimate interest in the proceedings and meets the procedural requirements for intervention. This does not equate to bringing a substantive Reference under Article 30 but recognizes the distinct role of intervention in the procedural framework of the Court.
Intervention — Threshold for Granting Leave to Intervene
Under Rule 59(4) of the East African Court of Justice Rules read with Article 40 of the Treaty, the Court has discretion to allow intervention only if satisfied that the application is justified. This establishes a high judicial discretionary threshold requiring the applicant to demonstrate a clear and substantial interest in the outcome without unduly complicating or enlarging the issues before the Court. The Court's satisfaction hinges on whether the applicant's involvement will enhance the resolution of the case without prejudicing the rights of the original parties or deviating from the established scope of the litigation.
Intervention — Requirement of Direct and Distinct Interest
Intervention is warranted only when the applicant demonstrates a distinct and substantial interest that cannot be represented through existing parties. Where the applicant's interest is tangential rather than direct and immediate, and where the applicant's interests are already extensively and adequately represented by an existing party who has constitutional responsibility for defending government institutions, the threshold for intervention is not met.
Intervention — Duplication of Arguments and Procedural Efficiency
Where a proposed intervener's submissions largely overlap with an existing party's defence and the proposed intervention adds no new perspective to the case, the risk of procedural inefficiencies and prejudice to the opposing party outweighs the applicant's interest in joining the proceedings. Procedural compliance alone does not guarantee intervention where the applicant has not clearly delineated their role in the disputed actions, provided compelling evidence that their intervention is indispensable to a just resolution, or avoided duplicating arguments that existing parties can already address.

Legislation cited (14)

  • Treaty for the Establishment of the East African Community Article 40
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 28
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 8(4)
  • East African Court of Justice Rules of the Court, 2019 Rule 59
  • East African Court of Justice Rules of the Court, 2019 Rule 59(4)
  • East African Court of Justice Rules of the Court, 2019 Rule 127
  • Constitution of Kenya, 2010 Article 88
  • Constitution of Kenya, 2010 Article 248(2)(c)
  • Constitution of Kenya, 2010 Article 249(2)(b)
  • Constitution of Kenya, 2010 Article 88(4)
  • Independent Electoral and Boundaries Commission Act, No. 9 of 2011 s.13

Cases cited (6)

  • Inspectorate of Government v Geoffrey Kazinda (EACJ Application No. 23 of 2022)
  • Attorney General of Burundi v Secretary General of EAC & Hon. Fred Mukasa Mbidde (EACJ Appeal No. 02 of 2019)
  • Central Bank of Kenya v Pontrilas Investment & Attorney General of Kenya (EACJ Application No. 6 of 2022)
  • Martha Wangari Karua v The Attorney General of the Republic of Kenya (EACJ Reference No. 20 of 2019)
  • Amama Mbabazi v Yoweri Kaguta Museveni (Election Petition No. 1 of 2016)
  • Hon. Fred Mukasa Mbidde v Attorney General of Burundi & Another (EACJ Application No. 6 of 2018)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Independent Electoral Commission of Kenya v Kiwanuka and Another (Application No.47 of 2022) [2024] EACJ 13 (28 November 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.