1.Before Court for determination is the 1st Respondent’s application dated 21.10.22 brought pursuant to Article 50 of the Constitution, Section 80(3) of the Elections Act, 2011, and Rules 4, 12(1), and 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. It seeks for orders that: -1.That the Honourable court be pleased to strike out the petition for being founded on false averments and statements and supported by a perjurious affidavit.2.That in the alternative to prayer 1 above, the Honourable Court be pleased to expunge from the Court’s record the 2nd Petitioner’s Supporting Affidavit to the Petition sworn on September 6, 2022.3.That further to prayer 2 above, the Honourable court be pleased to strike out from the Petition and all court record all the averments made therein by the 2nd Petitioner.4.That the 2nd Petitioner be struck out from the Petition5.That the Honourable court cites and holds the 2nd petitioner in contempt of court for perjury6.That costs of this application be provided for.
2.The Application is premised on the grounds on the face of it and on the supporting affidavit sworn by Ratemo Ombui on even date. The grounds are, that the 2nd Petitioner is not a resident of or a registered voter in Kitutu Chache South Constituency (the Constituency), but is registered in Nakuru County, Bahati Constituency - Lanet/Umoja Ward and Lanet Secondary school stream 3 polling station, hence lacks locus standi; that he has wilfully, intentionally and deliberately made false statements and averments in the Petition to subvert the course of justice; that the Petition herein having been filed jointly and the false statements and averments therein having been made jointly, the Petition must fall wholesomely; that the 2nd Petitioner’s supporting affidavit being perjurious is an abuse of the court process and cannot be allowed to stand; that the 2nd Petitioner’s perjury is in contempt and disrespect of the Court and solely intended to bring this Court into disrepute. He urged that the Application be allowed.
3.The Application is opposed by the Petitioners vide their affidavits sworn on 31.10.22. The 1st Petitioner stated that he is a resident and registered voter in the Constituency and hence has the locus standi to present the Petition; that there is no legal description of who can present a petition; that having complied with the constitutional and statutory framework, it would be unfair to shut him out from being heard; that no evidence has been tendered to support the allegations of perjurious and false statements; that the allegations can only be resolved after a full hearing and cross examination of witnesses whereupon the Court will make an informed decision; that perjury is a criminal offence that must be proven beyond reasonable doubt; that no criminal trial has been undertaken nor prosecution initiated on the charges of perjury; that each Petitioner signed the affidavit and swore an affidavit in support of the Petition, hence withdrawal of one would not render the Petition defective; that the 1st Respondent/Applicant makes a conclusion of fact that the Petition is predicated on falsehoods without evidence; that contempt of court is governed by a strict regime of laws and regulations and no basis has been laid to cite him for contempt; that it would therefore be premature to draw inferences of contempt, without evidence; that the 1st Respondent/Applicant is set to derail the hearing of the Petition which has been set down for hearing.
4.On his part, the 2nd Petitioner supported the averments of the 1st Petitioner. He stated that the Application is a malicious attempt to seek summary dismissal of the Petition; that the Application is premature as the sole issue raised in the Application falls for determination as agreed issue number 6, at the hearing of the Petition; that he is both a resident and a registered voter in the Constituency; that he presented himself at the Nyankongo Polling Centre on 9.8.22 only to be informed that his name could not be found in the electronic register; that he has never lived nor registered as a voter in Bahati Constituency, Nakuru County; that the voter register is in the exclusive mandate and control of the 2nd and 3rd Respondents hence he is unable to account for the errors in the voters register and neither can he be held responsible for the said errors; that based on audit reports released on the voters register in the lead up to the elections there were transfers of voters without their authority and knowledge.
5.The 2nd Petitioner further stated that the electronic information in the screenshot and the alleged QR is inadmissible as the same has not been accompanied by an electronic certificate as required by Sections 78 and 106B of the Evidence Act and therefore the veracity cannot be ascertained; that voter registration is a continuous exercise; there is no specific requirement either under the Constitution or the Elections Act of the Elections (Parliamentary and County) Petitions Rules, 2017 on who can be a petitioner; that any Kenyan is permitted pursuant to Article 3 of the Constitution to defend and seek the upholding of the Constitution whenever they feel that it is under threat like in the election under challenger herein. On the alleged perjury, reiterated the averments of the 1st Petitioner. In particular, he stated that the Court cannot convict him of perjury without according him a fair trial; that no basis has been aid to cite the Petitioners for contempt. The 2nd Petitioner urged that the Application be dismissed with costs.
6.Parties filed their written submissions which I have duly considered. The following issues arise for determination: -i.Whether the 1st Respondent’s electronic evidence is admissible.ii.Whether the 2nd Petitioner has locus standi to file the Petition.iii.Whether the 2nd Petitioner committed perjury in his affidavit in support of the Petition and therefore amounts to contempt of court.iv.Whether the Petition and the 2nd Petitioner’s affidavit should be struck out.
Whether the 1st Respondent/Applicant’s Electronic Evidence is Admissible
7.The 1st Respondent/Applicant has anchored his application on the screenshot and the QR Code which allegedly shows that the 2nd Petitioner is not registered as a voter in the Constituency but in Nakuru County, Bahati Constituency - Lanet/Umoja Ward and Lanet Secondary school stream 3 polling station. On their part, the Petitioners have challenged the admissibility of the electronic evidence for want of an electronic certificate as required by Sections 78 and 106B of the Evidence Act. The Petitioners contended that the authenticity of such evidence cannot be ascertained in the absence of a certificate. Notably, the 1st Respondent/Applicant did not speak to this issue in his submissions.
8.Section 78A of the Evidence Act provides as follows on the admissibility of electronic and digital evidence:
9.Under the foregoing provision, electronic and digital material is admissible in proceedings even if not in its original form. The probative value of such evidence is however dependent upon inter alia the reliability of the manner in which such material is generated, stored or communicated. It is also dependent on the reliability of the manner in which the integrity of such material is maintained. Further, the originator of such evidence must be identified.
10.On admissibility of electronic records, Section 106B of the Act provides:
11.It can be seen from the foregoing that where a party seeks to rely on information contained in an electronic record which is printed on paper, as is the case herein, a certificate must accompany such document identifying the same and describing the manner in which it was produced. The certificate is required to give such particulars of any device involved in the production of that electronic record as may be appropriate, for the purpose of showing that the electronic record was produced by an electronic device. Further, such certificate is to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.
13.The Court found that the requirement of a certificate is mandatory and that electronic evidence not accompanied by a certificate should not be admitted. The rationale of the requirement being that the certificate vouches for the authenticity of electronic evidence and to prevent the doctoring or manipulating of electronic evidence which is then presented to Court.
16.The learned Judge found, and I agree, that the requirement of a certificate under Section 106B(4) of the Evidence Act is mandatory and goes to the substance of the matter. As such, failure to provide the same cannot be cured by invoking the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 which requires that justice shall be administered without undue regard to procedural technicalities.
17.Having considered the law and the authorities above, I am in agreement with the Petitioners that the authenticity of the electronic evidence exhibited in the Application as demonstration that the 2nd Petitioner is not registered as a voter in the Constituency cannot be ascertained. Accordingly, I find and hold that the said evidence is inadmissible for want of a certificate as required under the Evidence Act and the same is rejected.
Whether the 2nd Petitioner has Locus Standi
18.It is the 1st Respondent/Applicant’s case that the 2nd Petitioner lacks locus standi to file the Petition on account of him not being a resident of registered voter of Kitutu Chache Constituency.
20.In rebutting the submissions by the 1st Respondent/Applicant, the Petitioners argued that Article 258 donates standing to persons keen in defending the Constitution through the court process. Further that in the absence of a specific rule on locus, any person can be a petitioner. The Petitioners contended that there is no requirement for a person to demonstrate any interest, other than the need to uphold the Constitution just like in the case herein.
21.The Constitution of Kenya has broadened the avenues of constitutional litigation and removed previous hurdles on access to the Courts. The Constitution has enlarged the scope of locus standi, and has in Articles 22 and 258, empowered every person to move the Courts, contesting any contravention of the Bill of Rights, or the Constitution in general. Article 22 provides:
25.In the present case, the issue of locus standi was one of the agreed issues identified for determination during the main hearing of the Petition before Court. The Petitioners case is that the 2nd Petitioner was a registered voter of the Constituency but that on election day, upon presenting himself at the Nyankongo polling station, he was informed that his name could not be found in the electronic register, an error he argued he had no control over but which could only be explained by the 2nd and 3rd Respondents.
26.It is noted that the Application is anchored on the electronic evidence produced by the 1st Respondent/Applicant that the 2nd Petitioner is not a registered voter or a resident of the Constituency. The Court has found that evidence to be inadmissible. In the absence of any other evidence to support the allegations, the Application has no leg to stand on. There is no material placed before the Court to support the claim that the 2nd Petitioner is not registered as a voter in the Constituency. Indeed, the impugned electronic evidence cannot be proof of residence of the 2nd Petitioner. In any event, under Article 258 of the Constitution, every person, including the 2nd Petitioner, has the right to institute court proceedings, claiming that the Constitution has been contravened, or is threatened, or is threatened with contravention. This is what the Petitioners have alleged in the Petition which they have instituted. Accordingly, the claim that the 2nd Petitioner lacks locus standi in this matter is without merit.
Whether the 2nd Petitioner Committed Perjury in His Supporting Affidavit in Support of the Petition and Therefore Amounts to Contempt of Court
27.The 1st Respondent/Applicant contends that based on the claim that the 2nd Petitioner is not a registered voter in the Constituency, he has committed perjury by alleging that he is, and should therefore be cited for contempt.
28.Section 108 of the Penal Code provides for the offence of perjury as follows-
31.On their part, the Petitioners reiterated that the 1st Respondent/Applicant has not tendered any cogent evidence to support the allegation that the 2nd Petitioner is not a registered voter in the Constituency. They argued that owing to the inadmissibility of the electronic evidence, the Court should reject the invitation to make a finding that the 2nd Petitioner is not a registered voter of the Constituency. They further submitted that the 1st Respondent/Applicant is guilty of material non-disclosure by failing to seek the proper factual position before making this application by failing to confirm the registration status of the 2nd Petitioner. He thus proceeded on a wrong factual premise, misled himself and now seeks to mislead the Court to draw a conclusion of perjury. They relied on the case of Brinks – MAT Ltd vs Elcombe (1988) 3 All ER188, to support this submission.
32.The Petitioners further insisted that perjury is a criminal offence and the required standard of proof is beyond reasonable doubt. They contended that the matter is yet to be determined and in the absence of credible evidence, the Court cannot draw conclusions of fact on the commission of perjury.
33.After considering the rival submissions, I agree with the Petitioners that perjury is a criminal offence the standard of proof of which is beyond reasonable doubt. The question as to whether a person is guilty of perjury is the within the purview of a criminal Court. Furthermore, there is need for the 2nd Petitioner to be put to the stand to answer to the charges of perjury, cross examine his accusers and defend himself. Doing the contrary would be an affront to his constitutional right to be heard and to a fair hearing. In any event, the alleged offence of perjury is pegged on the unproven allegation that the 2nd Petitioner is not a registered voter or resident of the Constituency. In light of what the Court has stated on the issue of perjury, it follows that the Court cannot make a finding, as sought by the 1st Respondent/Applicant, that the 2nd Petitioner is guilty of contempt of court.
Whether the Petition and the 2nd Petitioner’s Affidavit Should Be Struck Out
34.The 1st Respondent/Applicant seeks that the 2nd Petitioner’s affidavit should be struck out for the reason that he has no locus standi to bring the Petition. He argued that Rule 8(4) (b) and 12(1) of the Rules provide that a petition must be supported by an affidavit by the petitioner. It must set out the facts and grounds relied on in the petition and therefore any false facts and ground relied in vitiate the entire petition.
35.On their part, the Petitioners submitted that the relief for striking out is misguided and ill conceived. Further that the exit of 1 petitioner should not affect a petition that is brought in the public interest. They contended that the 1st Respondent/Applicant has failed to demonstrate the defect in the Petition or the affidavit of the 1st Petitioner to warrant the striking out of the petition. They urged the Court to sustain the same and proceed to hear the Petition on the merit. They relied on Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others  eKLR and argued that a lesser drastic action wold be to strike out the alleged perjured paragraphs or even the perjured affidavit without striking out the Petition.
36.Rules 8 and 12 of the Rules make provision for the Petition and supporting affidavit. In particular Rule 8(4) provides as follows regarding the petition:As regards the supporting affidavit, Rule 12 provides:
37.I have carefully considered the grounds advanced by the 1st Respondent/Applicant and I find that the conclusions of fact that he is inviting the Court to draw at this stage, are premature considering the veracity of the same cannot be ascertained or subjected to cross examination. I hold the view that it is necessary to subject the matter to a full. Only then will the Court be able to hear the evidence of all parties and make an informed determination. Accordingly, I find no basis for striking out the 2nd Petitioners’ affidavit and the Petition as sought by the 1st Respondent/Applicant.
38.The upshot is that the Application dated 21.10.22 lacks merit and the same is hereby dismissed. Costs in the Cause.