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|Case Number:||Election Petition 6 of 2013|
|Parties:||Nuh Nassir Abdi v Ali Wario, Francis Runya (Returning Officer Bura Constituency) & Independent Electoral & Boundaries Commission|
|Date Delivered:||29 Jul 2013|
|Court:||High Court at Mombasa|
|Judge(s):||George Vincent Odunga|
|Citation:||Nuh Nassir Abdi v Ali Wario & 2 others  eKLR|
|Advocates:||Ms Kethi Kilonzo for the Petitioner Mr Balala and Mr Mohamed for the 1st Respondent Mr Nyamodi for the 2nd and 3rd Respondents|
|Advocates:||Ms Kethi Kilonzo for the Petitioner Mr Balala and Mr Mohamed for the 1st Respondent Mr Nyamodi for the 2nd and 3rd Respondents|
|History Docket No:||none|
Constitutional Principles Governing Election Courts in Determining Election Petitions
Nuh Nassir Abdi V Ali Wario & 2 others
Election Petition Number 6 0f 2013
High Court of Kenya at Mombasa
G.V Odunga, J
July 29th, 2013
Reported by Mercy Ombima
The Petitioner instituted an election petition to challenge the election of the first Respondent as Member of Parliament for Bonchari Constituency. During court proceedings, the Respondents raised a technical objection to the production of polling diaries for cross-examination claiming that the diaries had not been properly introduced in court.
The court had earlier, on its own motion, ordered for scrutiny of several election documents forming part of the dispute, among which were the polling diaries. The Petitioner argued that it was wrong for the Respondent to oppose the production of the polling diaries since during the scrutiny exercise; the parties to the dispute had been warned that issues arising from the exercise could possibly arise in the main hearing of the petition.
i. What were the laid down constitutional principles governing election proceedings?
Electoral Law – election petition proceedings – production of documents in election petitions – procedure for producing documentary evidence in election petitions - where the Respondents objected to the production of polling diaries – claim that the poling diaries had not been properly introduced in court according to statute - where the court discussed the constitutional principles governing election proceedings – Constitution of Kenya 2010, article 81; 159(2) (d), Elections Act No.24 of 2011 section 83; Election (Parliamentary and County Assembly Elections) Petitions Rules of 2013 rules 4 and 5
1. The ultimate purpose of election petitions and the role of the court was provided for in section 83 of the Elections Act 2011. The section provided that no election would be declared to be void, by reason of non-compliance with any written law relating to that election. That would be so if it appeared that the election was conducted in accordance with laid down constitutional principles and that non-compliance had not affected the result of the election.
2. The constitutional principles mentioned in section 83 of the Elections Act were found in article 81 of the Constitution of Kenya, which provided that the electoral system would comply with the following principles ;-
(a)Freedom of citizens to exercise their political rights under article 38;
(b)Not more than two-thirds of the members of elective public bodies would be of the same gender;
(c) Fair representation of persons with disabilities;
(d) Universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) Free and fair elections, which were—
(i) By secret ballot;
(ii) Free from violence, intimidation, improper influence or corruption;
(iii) Conducted by an independent body;
(iv)The elections would be transparent, and
(v) Administered in an impartial, neutral, efficient, accurate and accountable manner.
3. Those principles, together with other legislative and constitutional underpinnings guided the Election Court in the conduct and determination of an election petition. Procedural issues were covered by rules 4 and 5 of the Election (Parliamentary and County Assembly Elections) Petitions Rules. The Court of Appeal had previously held that that the courts had a new call to use the overriding objective to remove all “the cobwebs” experienced in civil proceedings in order to achieve resolution of disputes in a just, fair and expeditious manner - Stephen Boro Gitiha vs. Family Finance Building Society & 3 Others Civil Application No. Nai. 263 of 2009
4. The Respondents had contended that cross-examination on the polling day diaries ought not to be allowed because the said diaries were not properly before the court. However, in the course of cross-examination of the Petitioner, the result of the said scrutiny as well as the polling day diaries had been clearly dwelt on by the Respondents. They could not subsequently submit that the same could not be subject to any cross examination.
5. A scrutiny had been ordered on the Court’s own motion and the report therefrom had been the subject of cross examination. During the scrutiny, the subject polling day diaries had been some of the materials which were directed by the Court to be availed. When it was directed that the polling day diaries be availed, the parties were put on notice that issues arising could possibly arise in the course of the hearing and determination of the petition. The Court had ordered that copies of the said diaries be made and served on all the parties and this had been done.
6. The mere reference to the said polling day diaries in cross examining a witness, with a view to confirming what actually took place on the polling day, would not necessarily be prejudicial to a party. To the contrary it could assist the Court in determining the question of whether or not the principles under article 81 of the Constitution had been adhered to. However, the petitioner was put on notice that he should avoid the temptation to enlarge his case outside the scope of his pleadings. It was trite evidence law that a party was bound by his pleadings despite the evidence.
7. The deponents of the affidavits filed had been cross-examined on, amongst others, the report of the scrutiny and the recount. Article 159(2) (d) of the Constitution enjoined the courts and the tribunals to be guided by the principle that justice should be administered without undue regard to procedural technicalities. The direction taken in cross-examination had not been objected to on the ground that the said documents could never be the subject of the cross examination. The reason canversed was that the procedural rules relating to election petitions had not been complied with, in order for the same to properly form part of the record of the court. No prejudice had been alluded to at all.
1.Gitiha, Stephen Boro v Family Finance Building Society & 3 others Civil Application No Nai 263 of 2009 –(Explained)
2.Odinga, Raila Amolo & 2 others v Independent Electoral and Boundaries Commission & 3 others Election Petition Nos 5, 3 & 4 of 2013 (Consolidated)–(Explained)
2.Waititu, Ferdinand Ndungu v Independent Electoral and Boundaries Commission & 8 others Election Petition No 1 of 2013 –(Explained)
1.Elections Act, 2011 (Act No 24 of 2011) section 82 –(Interpreted)
2.Elections (Parliamentary and County Elections) Petition Rules, 2013 (Act No 24 of 2011 Sub Leg) rules 4, 5 –(Interpreted)
3.Evidence Act (cap 80) section 83 –(Interpreted)
4.Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 32(4) –(Interpreted)
1.Ms Kethi Kilonzo for the Petitioner
2.Mr Balala & Mr Mohamed for the 1st Respondent
3.Mr Nyamodi for the 2nd & 3rd Respondents
|History Advocates:||Both Parties Represented|
|Case Outcome:||Cross - examination allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
ELECTION PETITION NUMBER 6 OF 2013
NUH NASSIR ABDI...........................................PETITIONER
1. ALI WARIO.........................................1ST RESPONDENT
OFFICER, BURA CONSTITUENCY..........2ND RESPONDENT
BOUNDARIES COMMISSION................3RD RESPONDENT
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the noncompliance did not affect the result of the election.
The electoral system shall comply with the following principles––
(a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—
(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.
4. (1) The overriding objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.
(2) The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions in these Rules, seek to give effect to the overriding objective specified in sub-rule (1).
(3) A party to an election petition or an advocate for the party shall have an obligation to assist the court to further the overriding objective and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.
5. (1) For the purpose of furthering the overriding objective specified in rule 4, the court and all the parties before it shall conduct the proceedings for the purpose of attaining the following aims—
(2) The court may, where a party has breached any requirement of these Rules, issue orders, and impose penalties, as the court may consider just and fit including an order for payment of costs.
“The overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with and whatever is in conflict with it must give way. A new dawn has broken forth and we are challenged to reshape the legal landscape to satisfy the needs of our time. The court must warn the litigants and counsel that the courts are now on the driving seat of justice and the courts have a new call to use the overriding objective to remove all the cobwebs hitherto experienced in the civil process and to weed out as far as is practicable the scourge of the civil process starting with unacceptable levels of delay and cost in order to achieve resolution of disputes in a just, fair and expeditious manner. If the often talked of backlog of cases is littered with similar matters, the challenge to the courts is to use the new “broom” of overriding objective to bring cases to finality, by declining to hear unnecessary interlocutory applications and instead to adjudicate on the principal issues in a full hearing if possible.”
“Under Rule 15 (4) a respondent’s witness cannot give evidence unless he or she has previously filed a sworn affidavit setting out the substance of the evidence and which has been filed and availed to the parties. Given the aforesaid parameters, it is clear to me that documents or items filed or delivered to the court pursuant to Rule 21 of the Rules are not, and do not become part of the trial record unless and until the court grants leave for their use and inclusion in the trial . In such case they may then assume a place on the trial record. In my view, Rule 21 is intended to ensure that the court has ready access to ballot boxes and the results of an election in the event that the court is minded, either suo moto or upon an appropriate application, to engage the provisions of Part VI of the Rules in relation to scrutiny, tallying or recounting of votes.”
(1) An election court may, in the exercise of its jurisdiction—
(a) summon and swear in witnesses in the same manner or, as nearly as circumstances admit, as in a trial by a court in the exercise of its civil jurisdiction and impose the same penalties for the giving of false evidence;
(b) compel the attendance of any person as a witness who appears to the court to have been concerned in the election or in the circumstances of the vacancy or alleged vacancy;
(c) examine a witness who is compelled to attend or any other person who has not been called as a witness in court, and examined by a party to the petition and after examination the witness may be cross examined by or on behalf of the petitioner and respondent or either of them; and
(d) decide all matters that come before it without undue regard to technicalities.
“Section 23(1)(d) of the National Assembly and Presidential Elections Act stipulates that in the exercise of its jurisdiction, an election court shall decide all matters that come before it without undue regard to technicalities. Section 23(1) also empowers the court to compel the attendance of any person or witness who appears to it to have been concerned in the election…It is regrettable that many election courts have, in deciding several applications and petitions disregarded the spirit and tenor of section 23(1)(d) by allowing parties to resort to undue technicalities. While every effort must be made to follow rules of procedure as stipulated under the Act and the Election Petition Rules, the same should not be interpreted in a narrow and restrictive manner that may give undue advantage to some of the parties in an election petition. An election court should endeavour to do substantial justice without allowing unnecessary clogs and fetters to be placed along the path of justice…Section 34 of the Act gives the Electoral Commission power to make regulations for the better carrying out of its mandate. Some of those regulations provide for the manner in which the ballot boxes are handled before and after conduct of the elections and that includes sealing of the ballot boxes…In its quest for truth and just determination of an election dispute, an election court is not limited to examining only the documents referred to in Rule 19 of the Election Petition Rules but can examine any public document that is shown to be relevant…Section 23(b) of the Act also empowers the Election Court to summon the District Elections Co-ordinator and once summoned the witness has to swear an affidavit and deliver to court sufficient copies thereof as provided for under rule 18(4) of the Election Petition Rules.”
Dated at Mombasa this 29th Day of July 2013
Delivered in the presence of
Ms Kethi Kilonzo...........................................................for Petitioner
Mr Balala and Mr Mohamed............................for the 1st Respondent
Mr Nyamodi………….…….................for the 2nd and 3rd Respondents