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MUSIKARI NAZI KOMBO v MOSES MASIKA WETANGULA & 2 others [2013] eKLR

REPUBLIC OF KENYA

High Court at Bungoma

Election Petition 3 of 2013

MUSIKARI NAZI KOMBO............................................................…...............…………PETITIONER

Versus

MOSES MASIKA WETANGULA.............................………………...............…1ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION...........…2ND RESPONDENT

MADAHANAH MBAYA.........................................………………..............……3RD RESPONDENT
 
RULING

Defective Affidavit and Service of Unsigned Affidavit

[1]  Counsel for the Petitioner fastened two objections;

1) That the 2nd and 3rd Respondents served him with an affidavit that is neither signed by the deponent, Sila Rotich nor commissioned by a Commissioner for Oaths as required by the Oaths and Statutory Declarations Act; and

2) That the copy in the court file although purportedly signed and commissioned is defective and not properly filed in court.

[2]  He lamented that he could not even cross-examine the witness as he did not have the affidavit by the witness. The witness has not filed an affidavit in accordance with the rules. He should not, therefore, testify. The affidavit should be rejected.

[3]   He responded to the suggestion by Mr. Ochieng Oduol Advocate that the court, under rule 15(5) of the Elections (Parliamentary and County Elections) Petition Rules, 2013, could allow a witness who has not filed an affidavit to testify. He said that rule envisages an application to be made seeking leave of the court to allow such a witness to testify, but there is no application that has been made on the witness in question.

Gumbo opposed the objection

[4]   Mr. Gumbo opposed the objection. He submitted that the document before court is an affidavit in the sense of the law. It is duly commissioned and signed. The witness confirmed he is the deponent of the affidavit and he swore it in opposition to the petition.

[5]   Mr Gumbo continued to submit that counsel for the Petitioner did not quoted the specific provisions of the law that were offended by the affidavit in question. He merely stated in general terms that the affidavit does not comply with the Oaths and Statutory Declarations Act.

[6]    He further urged that election petitions determine rights which are of a public character- what he termed as rights in rem. The public at large also have substantial bona fide interest in the petition and that interest should not be prejudiced by paying undue regard to technicalities. Instead, substantial justice should be served in this case. He relied on Article 159 of the Constitution and the overriding objective of the court to support his argument. He prayed the court to allow the witness to testify on his affidavit filed in court.

[7]  Ochieng Oduol reinforced Gumbo’s argument. He told the court that the affidavit in question is clear in its contents and discrepancies in the dates is a matter of form which really should not prevent the court from accepting the affidavit. In any event, he argued, the court under rule 15(5) of the Elections Rules, 2013 would still allow such a witness to testify even without having filed an affidavit.

COURT’S RENDITION

[8]   There are two issues for determination:

1) Whether the affidavit filed herein is an affidavit for purposes of the law; and

2) What is the legal status of the service upon the Petitioner with an affidavit that is neither signed by the deponent nor commissioned by a Commissioner for Oaths as required by the Oaths and Statutory Declarations Act? 

[9]   Article 159 of the Constitution depreciated technicalities particularly those of form and favours substantial justice being served by the courts. Although the affidavit is not an example of proper drafting of pleadings, the distorted form attending it is not a matter that goes to the root of this cause. The court could admit it in its present form without causing any prejudice to the Petitioner. I find grounding in the constitutional principles set out in Article 159 of the Constitution which circumscribes the exercise of the wide discretion of the court in admitting affidavit evidence. I am also alive to the provisions of Order 19 rule 7 of the Civil Procedure Rules which I believe expresses the objects of Article 159 of the Constitution. See the Supreme Court cases by S.K MACHARIA, ELCTION PETITION BY RAILA ODINGA.

[10]  The only issue that is disturbing is why the 2nd and 3rd Respondents served the Petitioner with an unsigned affidavit? Or put in a better way; why they did not serve the duly signed and commissioned affidavit filed in court? I do not wish to arrogate any mischief in that unfortunate event, but I must however determine what such failure to serve proper court pleadings entails.

[11]  I have found that the affidavit in the court file is fit for purposes of a judicial proceeding. But, that is not the affidavit that was served on the Petitioner. Article 159 of the Constitution as the exemplar of administration of justice applies to all parties in a proceeding. Service of pleadings is not a technicality, as I said earlier, which can be depreciated by Article 159 of the Constitution. It is a substantive component of natural justice. Service of pleadings brings to the other party the kind of case the party is faced with and should therefore prepare to answer.   Service of pleadings serves many other vital purposes which I need not recite here. See the case of BGM HC JR NO 107 OF 2010.

[12]  The question is whether, in the absence of service of the proper affidavit, the witness should be entitled to testify on the impugned affidavit. I do not think so. After all, the concerned party should always be keen to serve proper documents on the other parties. Such indolence cannot be cured by Article 159 of the Constitution. There has been no explanation at all or sufficient explanation why the proper affidavit was not served on the Petitioner. For those reasons I will not allow the witness in question to testify.

Dated, signed and delivered in Bungoma this 4th day of July 2013

F. GIKONYO
JUDGE

IN THE PRESENCE OF:

Ochieng Oduol, Ouma,Masinde and Makokha for 1st Respondent

Ndambiri for Petitioner

Ngumbo for 2nd and 3rd Respondents

COURT: Ruling delivered in open court.
 
F. GIKONYO
JUDGE
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