[2017] KEHC 2443 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO. 14 OF 2017

(CONSOLIDATED WITH GARISSA EP. NO. 3 OF 2017)

IN THE MATTER OF THE GUBERNATORIAL ELECTIONS FOR WAJIR COUNTY

BETWEEN

AHMED ABDULLAHI MOHAMAD..….............................. 1ST PETITIONER

AHMED MUHUMED ABDI..…...........................................2ND PETITIONER

ADOW MOHAMED ABAKAR ……….............................. 3RD PETITIONER

AND

HON. MOHAMED ABDI MOHAMED ............................1ST RESPONDENT

GICHOHI GATUMA PATRICK....................................... 2ND RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION….......................................................… 3RD RESPONDENT

R U L I N G

1. By Petitions lodged in court on 5th and 6th September, 2017 at Garissa and Nairobi, respectively, the Petitioners challenged the election of the 1st Respondent as the Governor of Wajir County in the Election that was conducted by the 2nd and 3rd Respondents on 8th August, 2017. By a Motion on Notice dated 27th September, 2017, brought underRule 4(1) (2) (3) and 15(1) (4) (6) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, Order 19 Rule 3 of the Civil Procedure Rules, 2010 and section 2(2) of the Evidence Act, the Petitioners sought leave of this court to file further affidavits in support of their petition.

2. The grounds upon which the application was made were set out in the body of the Motion and the Supporting Affidavit of Ahmed Muhumud Abdi sworn on 27th September, 2017. These were; that the Petitioners were under strict timelines at the time of filing the Petition; that as a result the Petition was filed before accessing the witnesses and the evidence; that the subject witnesses reside in Wajir County which is 684 kilometers from Nairobi with poor road network; that one of the witnesses lives in a remote area with poor road infrastructure and network and could not be reached at the time of the preparation of the Petition. That the Petitioners were not seeking to introduce new grounds of the Petition but adding more information.

3. It was contended in the affidavit in support that, the proposed affidavits will address the issues of; failure to secure election materials as required under Article 81 of the Constitution, failure to openly and accurately collate the votes cast in breach of Article 86 of the Constitution, and failure to count and tabulate the results accurately.

4. In his submissions, Mr. Omwanza, Learned Counsel for the Petitioners submitted that the affidavits sought to introduce new evidence that is fundamental to the Petition; that there is discretion to grant the prayers sought and that the overriding objective of the Rulesis to facilitate the just, expeditious, proportionate and affordable resolution of election petitions. He relied on the cases of Robert Nelson Ngethe vs. Mbogori Njeru & Another [2006] Eklr and Bwana Mohamed Bwana vs. Silvano Buko Bonaya & 2 Others [2013] Eklr in support of the proposition that in allowing the giving of further evidence the court considers the significance of that evidence, the nature, context and extent of the new material. Counsel urged that the Motion be allowed.

5. The application was opposed by all the Respondents. The 2nd and 3rd Respondent relied on the Replying Affidavit of Nancy Koros sworn on 2nd October, 2017. It was contended that the law required the Petition to be accompanied with affidavits to be relied on at the trial in order to allow the respondents to effectively respond to the Petition; that the further affidavits and evidence envisioned in the Rules, is one that relate to the issues and grounds already raised in the Petition; that the Petitioners had exhibited only one affidavit of the proposed affidavits; that the issue of forceful opening of 12 boxes was not an issue raised in the Petition and that it therefore amounted to pleading a new case.

6. Ms. Okimaru, Learned Counsel for the 2nd and 3rd Respondent submitted that since the Petitioners had only exhibited one affidavit, the Petitioners had not demonstrated the nature, context and extent of the intended affidavit and evidence. Counsel cited the case of Zacharia Okoth Obado v. Edward Akongó Oyugi and 2 Others [2014] Eklr in support of that submission. She further submitted that the Petitioners had not presented any acceptable or cogent evidence to demonstrate why they had failed to include the alleged affidavits in the initial documents filed with the Petition. Counsel further submitted that the new affidavit sought to introduce new grounds to the Petition which amounted to amending the Petition. Counsel relied on the case of Benjamin Ogunyo Andama v. Benjamin Andola Andayi & 2 Others [2013] Eklr in support of that proposition. She concluded that section 76(4) of the Elections Act had given timelines within which additional grounds are to be introduced in a petition.

7. The 1st Respondent swore a Replying Affidavit on 3rd October, 2017 in opposition to the application. He stated that the additional affidavit is an attempt by the Petitioners to amend the Petition after the expiry of time provided under the law; that the reasons given by the Petitioners for not including the affidavits at the time of filing the Petition are inexcusable and that the actions of the Petitioners is an affront to the administration of justice.

8. Mr. Omuganda Learned Counsel for the 1st Respondent associated himself with the submissions of Ms. Okimaru and further submitted that the reasons advanced for failure to file the affidavits in time was not genuine. According to Counsel, the Petitioners had 28 days to look for their witnesses and file the alleged affidavits. This they had failed to do. He therefore urged the court to exercise its discretion judiciously and disallow the application.

9. I have carefully considered the affidavits on record, the submissions of Counsel and the authorities relied on. This is an application for leave to file affidavits and therefore adduce additional evidence. In an Election Petition, a petitioner is required to lodge in court his petition together with all the evidence he will rely on by way of affidavits (see Rule 12(4) of the Elections (Parliamentary and County Elections) Petitions Ruleshereinafter “the Rules”). The Respondents to a Petition are likewise required to file their responses to the petition together with the affidavits of their witnesses (see Rule 12(7) of the Rules). In this regard, no witness is allowed to testify at the trial of an election petition, without leave of court, unless he/she has delivered her affidavit as aforesaid (Rule 12(8) of the Rules).

10. However, the Rules do permit the filing of additional affidavits by way of supplementary and further affidavits (Rules 12(9) and 15(h). While a supplementary affidavit under Rule 12(9) may seem to be by a witness who may have already filed one, Rule 15(h) allows the filing of fresh evidence by way of further affidavits. In this regard, and as quite correctly submitted be Learned Counsels who argued the application before me, there exists jurisdiction to allow the filing of additional evidence by way of further affidavits. The question is, under what circumstances an election court will allow the filing of further evidence and whether in the circumstances of this case, the court should allow the application sought by the Petitioners.

11. Mr. Omwanza Learned Counsel for the Petitioners relied on the decision of the election court in Bwana Mohamed v. Silvano Bonaya (Supra) while Ms. Okimaru relied on the decision of the Supreme Court in Zacharia Okoth Obado v. Edward Okongó and 2 Others (Supra)on the principles applicable. In the Bwana Mohamed v. Silvano Bonaya case, the court held that:-

“It is also important to note that it is in the discretion of the court to allow or to refuse additional evidence. It is in the interests of justice that all parties are given a fair hearing in any suit. …. The benefit of all these aspects is to ensure expeditious and efficient disposal of cases thereby enhancing the quality of justice. In exercising its discretion the court has power to limit the length of the proceedings in the suit”.

12. On its part, the Supreme Court delivered itself in Zacharia Okoth Obado v. Edward Okongó and 2 Others as follows:-

“We are persuaded at this advanced stage in the proceedings, that it is not in the interests of justice to allow for new affidavit-evidence to be filed. This Court pronounced itself on a similar issue in the Raila Odinga case, where we held:

‘The parties have a duty to ensure they comply with their respective time-line, and the court must adhere to its own. There must be a fair and level playing field so that no party or the court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party or the court, as a result of omissions, or inadvertences whish were foreseeable or could have been avoided.

The other issue which the court must consider when exercising its discretion to allow a further affidavit is the nature, context and extent of the new material intended to be produced and relied upon. If it is small or limited so that the other party is able to respond to it, then the court ought to be considerate, taking into account all the aspects of the matter. However, if the new material is so substantial involving not only a further affidavit but massive additional evidence, so as to make it difficult or impossible for the other party to respond effectively, the court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence”.

13. This court fully associates itself with the said pronouncements. It is therefore clear from the foregoing that; there is jurisdiction to allow the filing of further affidavits or additional evidence; that the court’s discretion in an application for filing further affidavits is perfectly free; that however, that discretion should not be exercised capriciously but judiciously in that, it should be exercised in the interests of justice; the court must bear in mind the constitutional and statutory time lines set; that it should be exercised in order to afford fair hearing to the parties before court; that the court should consider the nature, context and extent of the new material, if small or limited there should be no any double guessing but if substantial and massive, the court should exercise caution.

14. One thing that is clear is that, a further affidavit is not to be allowed in order to introduce new grounds or issues in the petition. This is so considering the tight statutory timelines that are provided for filing, service and prosecution of election petitions. Introducing new grounds will amount to amending a petition, yet time for amending an election Petition is set by the statute itself (see section 76(4) of the Elections Act).

15. How then do the foregoing principles apply to the present application? The Petitioners contest that they are only seeking to adduce additional evidence in support of their Petition. The Respondents argue otherwise. The Respondents argue that the introduction of the Batalu Primary School Polling Station and the issue of opening the ballot boxes are new grounds that were not contained in the Petition. They further argued that failure to annex all the proposed affidavits made it difficult to discern the nature, context and extent of the intended further affidavits.

16. I have considered the affidavits of the respective parties on record as well as the Petition and the responses. In paragraph 17 of the Affidavit of Ahmed Muhumed Abdi sworn in support of the application, he deposed as follows:-

“17. THAT the proposed affidavits will address the following issue, inter alia:

i) Failure to secure election materials as required under Article 81 of the Constitution.

ii) Failure to openly and accurately collate the votes cast as required under Article 86 of the Constitution.

iii) Failure to count and tabulate the results accurately”.

17. I have looked at the two Petitions lodged in this court by the Petitioners. They have set out a total of eleven (11) grounds in challenging the election of the 1st Respondent. Ground numbers c), g), l) and n) are instructive. Those grounds are in respect of alleged incorrect tallying, manipulation of votes, failure to secure ballot papers and boxes and tampering of election materials. To my mind, these four grounds marry with what the deponent of the supporting affidavit has stated in paragraph 17 of that affidavit. Grounds c), g), l) and n) have been pleaded and some evidence advanced in affidavits that are already on record.

18. If I understood Mr. Omwanza well, what the Petitioners are seeking is to advance further and additional evidence in support of the foregoing grounds. To my mind, the fact that a particular polling station was not mentioned in the Petition in respect of a particular ground cannot be a basis of preventing a petitioner from advancing additional evidence to support such a ground. Additional evidence cannot amount to new grounds. Accordingly, I am not satisfied that in seeking to introduce the additional evidence by way of further affidavits the Petitioners are seeking to amend their Petition.

19. As regards the issue of failure to annex copies of the proposed further affidavit, I agree with the Respondents that in order for the parties and the court to establish the nature, extent and context of the proposed further evidence, it was imperative for the Petitioners to annex the proposed affidavits. However, since the deponent of the Supporting Affidavit has in paragraph 17 clearly stated the nature of the evidence to be introduced in those affidavits, I do not think that that failure is fatal.

20. The Respondents contended that the reasons advanced for the failure to file the proposed affidavits with the Petition was not genuine. The Petitioners case is that the 28 days they had to lodge the Petition was not sufficient for them to get all their witnesses to swear the affidavits; that because of the geographical location of Wajir County and the attendant infrastructural and network challenges, it was not possible for the Petitioners to get these witnesses to swear their affidavits. The Petitioners put the distance between Nairobi and Wajir as being 684km.

21. The Respondents did not dispute the assertion that Wajir County is about 684Km from Nairobi. They also did not challenge the allegation that that County has infrastructural and network challenges. On its part, this court takes judicial notice that Wajir County is to the far North East of Nairobi in excess of 600km (See Section 60 (1) of the Evidence Act and the Supreme Court’s decision in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2015] Eklr). I further take judicial notice that that part of this country has communication challenges. In this regard, it is likely that due to the challenges in infrastructure and network, the Petitioners may have been unable to trace and procure their witnesses within the 28 days to swear the subject affidavits.

22. Further, the Petitioners made the current application at the earliest time possible, even before the pre-trial conference. If the application is allowed, there will be sufficient time for the Respondents to respond to any allegations that the additional affidavits may introduce. Granting the orders sought will be in the interest of justice in that, all the parties will have the opportunity to have a fair hearing. The Petitioners will place before this court all the evidence in their possession in support of their Petition, while the Respondents will have an opportunity to respond by way of replying affidavits, to the allegations that will have been introduced. None of the Respondents alleged that he will suffer any prejudice if the orders sought are granted. In any event, I see none.

23. In the circumstances, I allow the application. The Petitioners are to file and serve three (3) affidavits which will restrict themselves to the grounds set out in paragraph 17 of the Supporting Affidavit of Ahmed Muhumed Abdi sworn on 27th September, 2017. The said affidavits will be filed and served within three (3) days of today. The Respondents will file and serve their responses thereto within five (5) days of service by the Petitioner, but in any event, not later than 4pm Monday 16th October, 2017.

Costs will be in the cause.

DATED and DELIVERED at Nairobi this9th of October, 2017.

……………...

A. MABEYA

JUDGE