[2017] KEHC 1703 (KLR)
The court held that documents marked 'C' and 'B1' were properly expunged from the record for non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules. As a result, these documents cannot be relied upon by the petitioners in support of their case. The court further ruled that cross-examination cannot...
Source-derived case information.
- Citation
- [2017] KEHC 1703 (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 of 2017
- Procedural Posture
- Election Petition / Interlocutory Ruling on Admissibility of Documents and Scope of Cross Examination
- Outcome
- Documents marked 'C' and 'B1' remain expunged; cross-examination on expunged documents is not permitted.
- Judges
- AG Ndung'u
- Legal Topics
- Admissibility of Evidence, Burden of Proof, Cross Examination Scope, Expungement of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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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 Documents and Scope of Cross Examination
Legal Issues
- 1 Whether documents expunged from the record can be relied upon by the petitioners during cross-examination.
- 2 Whether cross-examination can be used to reintroduce or require production of expunged documents.
- 3 What is the probative value of answers given by a witness on documents not produced in court due to expungement.
Ratio Decidendi
The court held that documents marked 'C' and 'B1' were properly expunged from the record for non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules. As a result, these documents cannot be relied upon by the petitioners in support of their case. The court further ruled that cross-examination cannot be used as a means to reintroduce or require production of documents that have been expunged. The probative value of any answers given by a witness regarding such documents is nullified, as the documents no longer form part of the evidence. The court emphasized that while cross-examination latitude is broad, it must not circumvent prior orders expunging evidence. The witness is...
Court Disposition
Documents marked 'C' and 'B1' remain expunged; cross-examination on expunged documents is not permitted.
Orders
- Documents marked 'C' and 'B1' are expunged from the record.
- Petitioners are barred from relying on or cross-examining witnesses on expunged documents.
Full Case Text
Judgment text and source record
32 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
In support of the petition herein, the 2nd and 3rd Respondents relied on documents attached to the affidavit and marked “C” and “B1”.
In a matter canvassed before me, those documents were expunged and the court expressed itself thus;
“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....”
It goes without saying that those documents are not available in support of the 2nd and 3rd Petitioners case.
Our system of law is adversarial in nature. Whoever alleges proves. I need not belabour the issue of the burden of proof in a matter like the one before Court.
However, in the testing of the veracity, correctness or truth of facts stated, the latitude for cross-examination is wide. Counsel must be accorded the necessary space in cross-examination.
Care must be taken, however, not to introduce through the back door documents already expunged by the Court. The 2nd and 3rd Petitioners cannot use cross-examination to re-introduce documents that were expunged neither can cross-examination be used to require production of documents by the Respondent.
The Law provides adequate and elaborate procedures for discoveries, production and requests for better particulars.
A question arises as to of what probative value be answers given by a witness on a document that is not produced in Court and will not be produced given existing orders will be?
The witness is duty bound to answer all questions on documents he has annexed.
However, what is expunged from the record no longer forms part of the evidence in support of the Petitioner's case. To that extent the witness will be shielded from questions relating to expunged documents as the Court has to restrict itself to evidence offered in support of the Petition. This will be observed without unnecessarily limiting the latitude available in cross-examination.
Dated, Signed and Delivered in Kisii this 19th day of December, 2017.
A. K. NDUNG'U
JUDGE