[2013] KEHC 1056 (KLR)

[2013] KEHC 1056 (KLR)

The court found that neither Section 80 of the Elections Act nor Rule 38 of the Election Petition Rules expressly authorizes the issuance of arrest warrants to compel the attendance of witnesses. The court had already issued witness summons, which is the procedure envisaged under the Elections Act. The court further held that allowing the respondents to call their witnesses before the petitioner's case was closed would split the proceedings and create procedural uncertainty. The court declined both the request for arrest warrants and the request to allow the respondents to proceed with their witnesses, holding that such orders would not be in the interest of justice or procedural fairness.

Citation
[2013] KEHC 1056 (KLR)
Parties
Applicant: Benjamin Ogunyo Andama; Respondent: Benjamin Andola Andayi; Respondent: Sally Chesang; Respondent: Independent Electoral & Boundaries Commission
Court
High Court
Court Station
High Court at Kakamega
Jurisdiction
Kenya
Judgment Date
20 June 2013
Case Number
Election Petition 8 of 2013
Procedural Posture
Election Petition / Interlocutory Application for Witness Arrest Warrants and Procedural Directions
Outcome
Requests for warrants of arrest and for respondents to proceed with their witnesses denied.
Judges
GMA Dulu
Legal Topics
Witness Summons, Compelling Attendance, Affidavit Evidence, Court Powers, Adjournment, Procedural Fairness
Source Language
English
Election Petitions Witness Summons Compelling Attendance Affidavit Evidence Court Powers Adjournment Procedural Fairness

Case Brief

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Parties

Benjamin Ogunyo Andama

Applicant

Benjamin Andola Andayi

Respondent

Sally Chesang

Respondent

Independent Electoral & Boundaries Commission

Respondent

Procedural Posture

Election Petition / Interlocutory Application for Witness Arrest Warrants and Procedural Directions

Legal Issues

  1. 1 Whether the court should issue warrants of arrest to compel attendance of the petitioner's witnesses.
  2. 2 Whether the respondents should be allowed to call their witnesses before the petitioner's case is closed.
  3. 3 Whether affidavit evidence of absent witnesses can be used without leave of the court.

Ratio Decidendi

The court found that neither Section 80 of the Elections Act nor Rule 38 of the Election Petition Rules expressly authorizes the issuance of arrest warrants to compel the attendance of witnesses. The court had already issued witness summons, which is the procedure envisaged under the Elections Act. The court further held that allowing the respondents to call their witnesses before the petitioner's case was closed would split the proceedings and create procedural uncertainty. The court declined both the request for arrest warrants and the request to allow the respondents to proceed with their witnesses, holding that such orders would not be in the interest of justice or procedural fairness.

Court Disposition

Requests for warrants of arrest and for respondents to proceed with their witnesses denied.

Orders

  • The request for issuance of warrants of arrest for the three petitioner's witnesses is declined.
  • The request to allow the respondents to call their witnesses before the petitioner's case is closed is declined.