1.On November 22, 2022, after Prof Ojienda, the 1st respondent’s Counsel had taken this Court through the evidence of 8 witnesses, he informed the Court that he was seeking directions emanating from the testimony adduced before this Court. He stated that it was compelling that he should make the application. He further stated that after the evidence commenced herein, he received representations from one Stephen Musili Advocate, who indicated that he had been mentioned in Court as having attested to several documents before this Court but he had informed Prof Ojienda that his commissioning stamp had disappeared from his office and that he did not witness the petition and the affidavits for the petitioner.
2.Prof Ojienda indicated that Mr Musili was pleading and had prepared an affidavit and would like to appear before this Court under Regulation 19(1) of the Election (General Regulations) Elections Act. The 1st respondent’s Counsel expressed the view that even the petitioner’s Advocates who are officers of this Court would like to know the truth.
3.He further stated that Mr Musili’s reputation was in the line as his name had been mentioned in a trial process as having commissioned documents whereas the use of his stamp out there was a matter of professional misconduct.
4.Prof Ojienda indicated the issue of whether Mr Musili’s stamp was used without his permission was a matter that needed to be verified. He also indicated that they were willing to call the said Advocate to testify the following day, as he had gone to their chamber twice asking to be allowed to testify.
5.Messrs Miller and Wena, the petitioner’s Counsel would hear none of that. Mr Miller submitted that the particular issue of the stamp that was used to stamp the documents and affidavits of the petitioner’s witnesses was raised during pre-trial directions and the Court stated that it would be dealt with as part of the petition. He stated that the 1st respondent has had more than sufficient time to file a formal application but he opted not to do so. He pointed out that the 1st respondent had filed an application which was given a date for purposes of striking out the petition and the IEBC (2nd respondent) raised the issue of the stamp but opted not to file an application. He stated that for the 1st respondent to wait until now to seek to sneak in a witness or an alleged witness without a formal application is on its own disrespectful to this Court and contrary to the election petition rules and it would be prejudicial to the petitioner as it (application) seeks to also extend the timelines given by this Court for the hearing of the petition.
6.He contended that the application had not been made in good faith either as it casts aspersions without giving the petitioner and his Advocate adequate notice to peruse the application and flies in the face of the rules of natural justice. He also contended that presumption that a man would come from his station to Malindi and presume that this Court will put such a person on the stand is an abuse of the Court process and disrespectful to this Court. He stated that the time for bringing in witnesses and filing applications is closed.
7.Mr Miller stated that witness upon witness had held the Quran or bible and swore that they were at Flamingo Towers when Mr Musili commissioned their affidavits. He indicated that if the application is allowed, then they must be allowed to call all the witnesses who testified for the petitioner to come back to identify the said Stephen Musili who commissioned the said affidavits. He asserted that the 1st respondent was trying to circumvent their well thought out case.
8.Mr Wena for the petitioner submitted that the 3rd respondent filed a response to the petition and the replying affidavit and in paragraph 4, he brought up the issue of the petitioner’s affidavits having been commissioned by a firm of Advocates instead of a Commissioner for oaths. He stated that applications in election petitions must be filed within 14 days and the 3rd respondent being alive to his averments ought to have filed the affidavit of Mr Musili at that time so that it becomes a part of their response but no reason had been given as to why that was not done. He stated that the 1st respondent was at liberty to file a formal application and serve it upon the parties for the Court to make a determination.
9.He stated that to suggest that any witness can come at any time to the proceedings would make a mockery of justice to the rules, which are there to be obeyed as they are not an afterthought. He stated that having an affidavit introduced at this time of the proceedings when the petitioner’s case has been closed amounts to an abuse of the Court process.
10.He stated that the issue of the affidavit having been witnessed by an Advocate was framed for determination and it should be based on the material before this Court.
11.Mr Mutugi for the 2nd and 3rd respondents stated that it was not correct that the Court gave directions on how to deal with the issue raised in the 3rd respondent’s response and that the issue that this Court indicated would be subsumed in the hearing of the petition was the issue of the striking out of the petition. He stated that paragraph 4 of the 3rd respondent’s response raises a preliminary objection, of which the petitioners’ Advocate is aware. He stated that the issue of whether the affidavits by the petitioner’s witnesses was witnessed by a law firm and not a commissioner for oaths was raised and the issue that was raised therein is different from the issue that is being raised by the 1st respondent.
12.Mr Mutugi was of the view that the 1st respondent should be allowed to bring in the witness he seeks to bring on the issue of commissioning of the affidavits. He was of the view that it would be fair for the person who commissioned the documents to be allowed to testify and state that he did not commission the said documents.
14.He contended that there will be no need to proceed on with the trial when there is lingering doubt that there was no petition at all. He stated that the question is whether there is a petition before this Court.
Analysis and Determination
15The issue for determination is if additional evidence can be adduced after the closure of pleadings and settling of issues; and if the 1st respondent herein should be allowed to call additional evidence.
16.The pleadings and the filing of interlocutory applications before the commencement of hearing of the election petition closed on October 17, 2022 when the last application was filed by the 1st respondent. In the said application, the 1st respondent sought an order for the striking out of the petition for non-joinder of the Deputy Governor, Tana River County to the petition. The 1st respondent’s Counsel however later requested for the application to be subsumed in the main petition.
17.Directions and timelines for the hearing of the petition were given on November 11, 2022. The issues for determination were settled and a list of issues prepared by the Court from issues proposed by the Counsel for the parties was adopted and signed by the said Counsel on November 16, 2022. The hearing of the petitioner’s case commenced on the said date and closed on November 21, 2022.
18.The 1st respondent’s case commenced hearing on November 22, 2022 and the application in issue was made on the said date after the 1st respondent had testified as the 8th witness.
20.As seen from Regulation 15(f) above, the most appropriate time for the Court to give directions for the filing of, and serving of any further affidavits and or giving of additional evidence is at the time when the Court is giving pre-trial directions.
21.Parliament in its wisdom however foresaw that situations may arise which may lead to parties having to make applications geared towards determining matters that may arise in the course of hearing of an election petition. Rule 19 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 is aimed at addressing such situations. It reads as follows-
22.The above provisions give a wide discretion to an election Court to extend the time within which parties can make applications, such as the one the 1st respondent has made. A Court’s discretion however must be so exercised only to ensure that injustice is not done to any party.
23.The Supreme Court in Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated))  KESC 1 (KLR) declined to allow a further affidavit being introduced at the hearing of the said petition due to the strict timelines the Court had to hear and determine the petition. It also emerged as a fact, that the further affidavit, as the respondents averred, was attempting to introduce new matter into the original petition, by way of averments. As stated in the Judgment by the Supreme Court, the merits of the belated move were canvassed at the pre-trial conference and the said Court ruled on excluding the further affidavit as giving time for responses to be filed would have affected the 14 days’ period given to the Court to hear presidential election petition.
24.In this election petition, this Court has 6 months to determine the same. There are still a few months left before the 6 month’s window for hearing this election petition lapses. The petitioner called his witnesses and closed his case. By seeking to introduce a new witness to this petition at this stage, the 1st respondent is asking this Court to reopen the issues, which in turn will lead to reopening of the petitioner’s case in order to allow him to bring in evidence to counteract the averments that will be made in the affidavit of Stephen Musili Advocate. Mr Miller was right when he stated that if this Court was to allow the oral application made, then the petitioner will have to call all the witnesses who have testified so as to identify Mr Stephen Musili as the Advocate who commissioned the affidavits relied on by the petitioner’s witnesses.
25.This Court notes that hearing of election petitions come with many intrigues which I need not go into. From face value, it may appear as if the application made by the 1st respondent is a walk in the park. It is however far from that. It must be borne in mind that the allegation of theft of an Advocate’s stamp is a criminal offence and like all criminal offences, it is the work of the Police to investigate such an allegation and conclusively deal with it, after interrogating the Advocate who is alleging that his stamp was stolen and also after interrogating the petitioner’s witnesses who swore under oath that Mr Stephen Musili was at Flamingo Towers (building) on the dates they swore their affidavits and he witnessed them signing the same. It would be up to the Police to decide the trajectory of investigations to launch, on whether they should hold an identification parade to have the said Stephen Musili identified by the petitioner’s witnesses as the Advocate who commissioned the affidavits and also subject the signatures of the Advocate who commissioned the said affidavits to forensic document examination. A Court of law cannot be the investigator, judge and jury all wrapped into one.
26.Allowing the said Advocate to adduce evidence before investigation of the alleged theft of his stamp has been done and concluded would be highly prejudicial to petitioner’s case as this Court may be persuaded into seeing the petitioner, his witnesses and Advocates through a different lens without them having been given the opportunity to explain their side of the story to the investigative arm of the Government.
27.In the mind of this Court, the intention by the 1st respondent to call Mr. Stephen Musili Advocate before any investigations have been done about the alleged theft of his stamp has not been made in good faith. It is an afterthought which is aimed at derailing the progress of the petition herein. The oral application to have Mr Stephen Musili Advocate called as a witness for the 1st respondent is hereby declined.
28.Costs of the oral application shall be in the main petition.