[2017] KEHC 2173 (KLR)
The court held that since the respondent (R2W1) specifically denied the allegation of an election offence and put the petitioners to strict proof, any evidence that addresses this denial is relevant. The court further reasoned that cross-examination is intended to test the credibility of a witness, and relevant...
Source-derived case information.
- Citation
- [2017] KEHC 2173 (KLR)
- Parties
- Applicant: Ahmed Abdulahi Mohamad; Applicant: Ahmd Muhummed Abdi; Respondent: Hon. Mohammed Abdi Mahamud; Respondent: Gichohi Gatuma Patrick; Respondent: Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 14 of 2017
- Procedural Posture
- Election Petition / Ruling on Evidentiary Objection During Cross Examination
- Outcome
- objection dismissed
- Judges
- A Mabeya
- Legal Topics
- Admissibility of Evidence, Cross Examination Scope, Judicial Notice, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Abdulahi Mohamad
Applicant
Ahmd Muhummed Abdi
Applicant
Hon. Mohammed Abdi Mahamud
Respondent
Gichohi Gatuma Patrick
Respondent
Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petition / Ruling on Evidentiary Objection During Cross Examination
Legal Issues
- 1 Whether a witness can be questioned on an affidavit sworn by another person in a different petition during cross-examination.
- 2 Whether such questioning amounts to introducing new evidence not contained in the affidavits on record.
- 3 Whether the affidavit in question is relevant to the issues raised in the petition.
Ratio Decidendi
The court held that since the respondent (R2W1) specifically denied the allegation of an election offence and put the petitioners to strict proof, any evidence that addresses this denial is relevant. The court further reasoned that cross-examination is intended to test the credibility of a witness, and relevant questions may be put to the witness for this purpose. The affidavit in question, though sworn in another petition, is evidence in a related matter and the court can take judicial notice of it. Therefore, questioning the witness on the affidavit does not amount to introducing new evidence improperly, and is permissible as it relates directly to the issues in dispute.
Court Disposition
objection dismissed
Orders
- The objection to questioning the witness on the affidavit is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELECTION PETITION NUMBER 14 OF 2017
IN THE MATTER OF THE ELECTION ACT, NUMBER 24 OF 2011 LAWS OF KENYA AND THE ELECTION (GENERAL) REGULATIONS, 2012 AND ELECTIONS (PARLIAMENTARY AND COUNTRY) PETITION RULES, 2017
AND
IN THE MATTER OF THE GURBERNATORIAL ELECTIONS FOR WAJIR COUNTY, NO. 008, HELD ON 8TH AUGUST, 2017
BETWEEN
AHMED ABDULAHI MOHAMAD....................................1ST PETITIONER
AHMD MUHUMMED ABDI.............................................2ND PETITIONER
AND
HON. MOHAMMED ABDI MAHAMUD.......................1ST RESPONDENT
GICHOHI GATUMA PATRICK.....................................2ND RESPONDENT
INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION.…....................................................... 3RD RESPONDENT
RULING:
The Respondents have objected to the witness being questioned on an Affidavit sworn by one Abdikadir Sheikh in a different Petition. The bias is that that is tantamount to introducing new evidence not contained in any of the Affidavits on record or the Petition. Mr. Omuganda also objected on the basis that since the Affidavit is not sworn by R2W1 he should not be questioned on it.
The Court has been referred to paragraphs 67 to 70 of the Petition. They relate to an alleged Commission of an election offence by the Returning Officer of Wajir East Constituency. The same allegation was repeated by Ahmed Muhumed Abdi in paragraph 49 of his Supporting Affidavit sworn on 6th September, 2017.
In his response, R2W1 categorically denied that allegation in paragraph 42 of his Affidavit sworn on 18th September, 2017. Not only did he deny the allegation but he stated:-
“I rely on the Affidavit by Constituency Returning Officer for Wajir East, Mr. Abdikadir Sheikh Abdi and I put the Petitioners to strict proof thereof”.
Having specifically responded to the allegation and put the Petitioner’s to strict proof, this Court’s view is that any evidence that will go to answer the denial by proving the allegation is relevant. He did not state in his Affidavit that he swore on information by the said Abdikadir or any other person. This is so since in paragraph 59 he has stated that wherever he stated matters on information he disclosed the sources. Had he disclosed that the information in paragraph 42 of his Affidavit was on information, then it would not be right to put questions to him that go to show the position taken by Abdikadir.
Secondly, this is cross-examination. The law of evidence as I understand it is that in cross-examination, a witness can be asked any question provided it is relevant. Further, it is meant to test the credibility of a witness. How else can evidence of a witness be tested except on cross-examination when the veracity of what he has stated is shaken.
In this regard, I am told that the Affidavit which the witness has sought to be shown was sworn by his own Returning Officer in a matter pending before another Election Court. It is evidence in that Court. It is a matter which the Court can take judicial notice of. It is in my view, relevant in so far as it relates to the issue in question in paragraphs 67 to 70 of the Petition.
Accordingly, the objection is dismissed.
DATED and DELIVERED at Nairobi this 22ND day of November, 2017.
A MABEYA
JUDGE