[2017] KEHC 1694 (KLR)
The court held that since the documents marked 'C' and 'B1' did not comply with the mandatory requirements of Rule 9 of the Oaths and Statutory Declarations Rules, they were properly expunged from the record in the earlier ruling. The court further held that it cannot revisit or go behind its own orders to admit...
Source-derived case information.
- Citation
- [2017] KEHC 1694 (KLR)
- Parties
- Applicant: Chris Munga N. Bichage; Applicant: Zaheer Jhanda; Applicant: James F. O Kenani; Respondent: I.E.B.C; Respondent: Julius Meja Okeyo (Returning Officer); Respondent: Richard Nyagaka Tongi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Election Petition 12 & 10 of 2017
- Procedural Posture
- Election Petition / Interlocutory Ruling on Admissibility of Evidence
- Outcome
- Application to rely on expunged documents dismissed; 2nd and 3rd Petitioners precluded from relying on documents marked 'C' and 'B1'.
- Judges
- AG Ndung'u
- Legal Topics
- Admissibility of Evidence, Affidavit Requirements, Statutory Declarations, Expunging Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Chris Munga N. Bichage
Applicant
Zaheer Jhanda
Applicant
James F. O Kenani
Applicant
I.E.B.C
Respondent
Julius Meja Okeyo (Returning Officer)
Respondent
Richard Nyagaka Tongi
Respondent
Procedural Posture
Election Petition / Interlocutory Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether documents marked 'C' and 'B1' can be relied upon by the 2nd and 3rd Petitioners despite non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules.
- 2 Whether the court can revisit its previous order expunging documents from the record.
Ratio Decidendi
The court held that since the documents marked 'C' and 'B1' did not comply with the mandatory requirements of Rule 9 of the Oaths and Statutory Declarations Rules, they were properly expunged from the record in the earlier ruling. The court further held that it cannot revisit or go behind its own orders to admit evidence that has already been expunged. Consequently, the 2nd and 3rd Petitioners are precluded from relying on the expunged documents in support of their petition.
Court Disposition
Application to rely on expunged documents dismissed; 2nd and 3rd Petitioners precluded from relying on documents marked 'C' and 'B1'.
Orders
- Documents marked 'C' and 'B1' remain expunged from the record.
- 2nd and 3rd Petitioners are precluded from relying on the expunged documents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
ELECTION PETITION NO. 12 OF 2017
(CONSOLIDATED WITH ELECTION PETITION NO. 10 OF 2017)
IN THE MATTER OF ELECTIONS ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTION) PETITION RULES, 2017
AND
IN THE MATTER OF THE ELECTION FOR MEMBER OF NATIONAL ASSEMBLY FOR NYARIBARI CHACHE CONSTITUENCY
BETWEEN
CHRIS MUNGA N. BICHAGE …….……..........…..….….…..… 1ST PETITIONER
ZAHEER JHANDA ……………………….......…………..…..… 2ND PETITIONER
JAMES F. O KENANI ……………………….......………..…….. 3RD PETITIONER
VERSUS
I.E.B.C ………………………………………………...........….... 1ST RESPONDENT
JULIUS MEJA OKEYO (RETURNING OFFICER) .…...........… 2ND RESPONDENT
RICHARD NYAGAKA TONGI ……………………….......……. 3RD RESPONDENT
RULING
This Court did pronounce itself in respect of evidence sought to be relied on by the 2nd and 3rd Petitioner on 5/12/2017.
Under paragraph 67 of the ruling the Court stated;
“With the result that documents marked “C” and “B1” do not comply with the mandatory provisions of Rule 9 of the Oaths and Statutory Declarations Rules, the Court makes an order that the same be expunged from the record.....”
Rule 12 (5) (6) and (7) of the Elections (Parliamentary and County Elections) Petition Rules are clear on the mode of presentation of evidence in an election petition. This is vide affidavits and it is obvious that any evidence to be relied on will be a fact within the knowledge of a witness or through an annexture to the affidavit aforesaid.
When such an annexture is expunged, the same Court cannot go behind its own orders to admit the same.
In view of my orders of 5/12/2017 the 2nd and 3rd Petitioner are precluded from reliance on the expunged documents.
Dated, Signed and Delivered in Kisii this18th day of December, 2017.
A. K. NDUNG'U
JUDGE