Developing Jurisprudence beyond the Horizon

A Critique of the Supreme Court of Kenya Decision in Raila Amolo Odinga & Another v IEBC & Others (2017)

Abstract

This paper scrutinises the Supreme Court decision that nullified Kenya’s presidential election in 2017. It emphasises that, thanks to judicialisation of politics in Kenya’s current constitutional era, the judiciary is placed at the centre of resolving electoral disputes. Basing arguments on articles 20 and 38 of the 2010 Constitution, the paper draws attention to the shortfalls in the Supreme Court’s reasoning in its decision to nullify the election. It is suggested that, a proper right-centric approach, one that is conscious of the people’s sovereign will in a political democratic process, would have led the court to question whether the election result expressed the will of the electorate. Thus, it is argued that the precedent’s standard on nullification of an election has proved inadequate and has eroded the institutional integrity of the Court. With an eye on the next general elections, recommendations are made on how the Supreme Court may improve this condition.