Reported by Mercy Ombima

Evidence – production of evidence – affidavit evidence - evidence by witness affidavits – where the witness affidavit of one witness was not filed at the commencement of the petition –- where the name of the witness appeared in the pre-trial checklist but he did not swear a witness affidavit - where the witness introduced an affidavit as an annexure - claim that the annexed affidavit could not be construed as an affidavit in support of an election petition – whether a witness who had not sworn a witness affidavit could be allowed to give evidence - Election Petition Rules, rule 12 (1)

 Electoral Law – election petition – filing of an election petition – filing of a witness affidavit – where a witness purported to give evidence before filing a witness affidavit  – whether a witness who had not sworn a witness affidavit could be allowed to give evidence in court – Election Petition Rules, Rule 12

Issue

i. Whether a witness who had not sworn a witness affidavit could be allowed to give evidence in an election petition.

Held

1. Rule 12 of the Election Petition Rules provided guidance on witness affidavits. It provided that every petitioner would, at the time of filing an election petition, file in addition, an affidavit sworn by each witness whom the petitioner intended to call at trial, setting out the substance of the evidence.

2. The said rule also provided that the affidavit would form part of the trial and a deponent could be cross-examined by the Respondents. In absence of such an affidavit being filed, the court would be reluctant to allow such evidence.

3. No sufficient reason had been given as to failure to deliver the said affidavit. A list of the witnesses for the petitioner had been provided at the pre-trial checklist filed in court and the witness in question was not in the list. His affidavit that was later introduced in the Petitioner's document was an annexture and was not an affidavit as was envisaged under rule 12 of the Election Petition Rules.

4. Rule 12(4) of the Election Petition Rules precluded a witness who had not sworn an affidavit setting out the substance of the evidence, from giving evidence. Consequently, the said witness could not be permitted to give evidence. Had leave of court been sought and with sufficient reason given, then court could have considered the application.

Objection Allowed

Electoral law- preliminary objection- preliminary objection to the petition- where the petitioner failed to deposit security for costs- whether failure to deposit the security for costs was fatal to the life of the petition- Constitution of Kenya, Article 87, 159(2)(d)- Elections Act, sections 75(2), 78- Elections (Parliamentary and County Elections) Petition Rules, 2013, rules 4, 5, 11

Electoral law- recount and scrutiny- application for recount and scrutiny of votes- whether sufficient basis was laid to warrant the grant of the order- Elections Act, section 82(1), (2)- Elections (Parliamentary and County Elections) Petition Rules, 2013, rules 32, 33

Electoral law- joinder- joinder of party- joinder of a party to the proceedings as the 4th respondent- where the claimant claims to have been adversely mentioned in the petition- whether the interested party has capacity to be enjoined as a respondent- Constitution of Kenya, Article 50(1)- Elections (Parliamentary and County Elections) Petition Rules 2013, rules 2, 4(1)(2)- Elections Act, section 87(2)