[2013] KEHC 3267 (KLR)

[2013] KEHC 3267 (KLR)

The court found that the four further affidavits filed by the petitioner introduced new complaints and disputes not contained in the original petition, thereby materially changing the position of the petition in contravention of the leave granted by the court. The court held that affidavits in election petitions, except for the one filed with the petition, are to contain only the substance of evidence and not new grounds. Since the further affidavits went beyond clarifying or amplifying existing complaints and instead introduced new matters, they did not comply with the pre-conditions for leave and had to be struck out. The court declined to strike out affidavits filed with the petition...

Citation
[2013] KEHC 3267 (KLR)
Parties
Applicant: Benjamin Ogunyo Andama; Respondent: Benjamin Andola Andayi; Respondent: Selly Chesang (Returning Officer); Respondent: Independent Electoral & Boundaries Commission
Court
High Court
Court Station
High Court at Kakamega
Jurisdiction
Kenya
Judgment Date
6 June 2013
Case Number
Election Petition 8 of 2013
Procedural Posture
Election Petition / Ruling on Interlocutory Application to Strike Out Further Affidavits
Outcome
Application allowed; four further affidavits struck out; costs to follow the outcome of the petition.
Judges
GMA Dulu
Legal Topics
Affidavit Striking Out, Pleadings and Amendments, Procedural Fairness, Election Disputes
Source Language
English
Election Petitions Civil Procedure Affidavit Striking Out Pleadings and Amendments Procedural Fairness Election Disputes

Case Brief

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Parties

Benjamin Ogunyo Andama

Applicant

Benjamin Andola Andayi

Respondent

Selly Chesang (Returning Officer)

Respondent

Independent Electoral & Boundaries Commission

Respondent

Procedural Posture

Election Petition / Ruling on Interlocutory Application to Strike Out Further Affidavits

Legal Issues

  1. 1 Whether the further affidavits filed by the petitioner pursuant to leave of court materially changed the position of the petition and should be struck out.
  2. 2 Whether affidavits filed with the petition should also be struck out for allegedly expanding the grounds of the petition.
  3. 3 Whether affidavits in election petitions can introduce new grounds or must be limited to the substance of evidence supporting pleaded grounds.

Ratio Decidendi

The court found that the four further affidavits filed by the petitioner introduced new complaints and disputes not contained in the original petition, thereby materially changing the position of the petition in contravention of the leave granted by the court. The court held that affidavits in election petitions, except for the one filed with the petition, are to contain only the substance of evidence and not new grounds. Since the further affidavits went beyond clarifying or amplifying existing complaints and instead introduced new matters, they did not comply with the pre-conditions for leave and had to be struck out. The court declined to strike out affidavits filed with the petition...

Court Disposition

Application allowed; four further affidavits struck out; costs to follow the outcome of the petition.

Orders

  • The four affidavits filed by the petitioner pursuant to leave granted on 14th May 2013 are struck out from the record.
  • Costs of the application will follow the decision in the petition.