[2022] KEHC 14994 (KLR)

Getuba & another v Kibagendi & 2 others (Election Petition E002 of 2022) [2022] KEHC 14994 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14994 (KLR)

Republic of Kenya

In the High Court at Kisii

Election Petition E002 of 2022

M Thande, J

November 9, 2022

Between

Geoffrey Omwenga Getuba

1st Petitioner

Nathan Onkundi Mosioma

2nd Petitioner

and

Antoney Kibagendi

1st Respondent

Returning Officer Kitutu, Chache South Constituency David Kipkemoi Cherop

2nd Respondent

Independent Electoral & Boundaries Commission

3rd Respondent

Ruling

1. Before Court for determination is the 1st Respondent’s application dated 21. 10. 22 brought pursuant to Article 50 of the Constitution, Section 80(3) of the Elections Act, 2011, and Rules 4, 12(1), and 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. It seeks for orders that: -1. That the Honourable court be pleased to strike out the petition for being founded on false averments and statements and supported by a perjurious affidavit.2. That in the alternative to prayer 1 above, the Honourable Court be pleased to expunge from the Court’s record the 2nd Petitioner’s Supporting Affidavit to the Petition sworn on September 6, 2022. 3.That further to prayer 2 above, the Honourable court be pleased to strike out from the Petition and all court record all the averments made therein by the 2nd Petitioner.4. That the 2nd Petitioner be struck out from the Petition5. That the Honourable court cites and holds the 2nd petitioner in contempt of court for perjury6. That costs of this application be provided for.

2. The Application is premised on the grounds on the face of it and on the supporting affidavit sworn by Ratemo Ombui on even date. The grounds are, that the 2nd Petitioner is not a resident of or a registered voter in Kitutu Chache South Constituency (the Constituency), but is registered in Nakuru County, Bahati Constituency - Lanet/Umoja Ward and Lanet Secondary school stream 3 polling station, hence lacks locus standi; that he has wilfully, intentionally and deliberately made false statements and averments in the Petition to subvert the course of justice; that the Petition herein having been filed jointly and the false statements and averments therein having been made jointly, the Petition must fall wholesomely; that the 2nd Petitioner’s supporting affidavit being perjurious is an abuse of the court process and cannot be allowed to stand; that the 2nd Petitioner’s perjury is in contempt and disrespect of the Court and solely intended to bring this Court into disrepute. He urged that the Application be allowed.

3. The Application is opposed by the Petitioners vide their affidavits sworn on 31. 10. 22. The 1st Petitioner stated that he is a resident and registered voter in the Constituency and hence has the locus standi to present the Petition; that there is no legal description of who can present a petition; that having complied with the constitutional and statutory framework, it would be unfair to shut him out from being heard; that no evidence has been tendered to support the allegations of perjurious and false statements; that the allegations can only be resolved after a full hearing and cross examination of witnesses whereupon the Court will make an informed decision; that perjury is a criminal offence that must be proven beyond reasonable doubt; that no criminal trial has been undertaken nor prosecution initiated on the charges of perjury; that each Petitioner signed the affidavit and swore an affidavit in support of the Petition, hence withdrawal of one would not render the Petition defective; that the 1st Respondent/Applicant makes a conclusion of fact that the Petition is predicated on falsehoods without evidence; that contempt of court is governed by a strict regime of laws and regulations and no basis has been laid to cite him for contempt; that it would therefore be premature to draw inferences of contempt, without evidence; that the 1st Respondent/Applicant is set to derail the hearing of the Petition which has been set down for hearing.

4. On his part, the 2nd Petitioner supported the averments of the 1st Petitioner. He stated that the Application is a malicious attempt to seek summary dismissal of the Petition; that the Application is premature as the sole issue raised in the Application falls for determination as agreed issue number 6, at the hearing of the Petition; that he is both a resident and a registered voter in the Constituency; that he presented himself at the Nyankongo Polling Centre on 9. 8.22 only to be informed that his name could not be found in the electronic register; that he has never lived nor registered as a voter in Bahati Constituency, Nakuru County; that the voter register is in the exclusive mandate and control of the 2nd and 3rd Respondents hence he is unable to account for the errors in the voters register and neither can he be held responsible for the said errors; that based on audit reports released on the voters register in the lead up to the elections there were transfers of voters without their authority and knowledge.

5. The 2nd Petitioner further stated that the electronic information in the screenshot and the alleged QR is inadmissible as the same has not been accompanied by an electronic certificate as required by Sections 78 and 106B of the Evidence Act and therefore the veracity cannot be ascertained; that voter registration is a continuous exercise; there is no specific requirement either under the Constitution or the Elections Act of the Elections (Parliamentary and County) Petitions Rules, 2017 on who can be a petitioner; that any Kenyan is permitted pursuant to Article 3 of the Constitution to defend and seek the upholding of the Constitution whenever they feel that it is under threat like in the election under challenger herein. On the alleged perjury, reiterated the averments of the 1st Petitioner. In particular, he stated that the Court cannot convict him of perjury without according him a fair trial; that no basis has been aid to cite the Petitioners for contempt. The 2nd Petitioner urged that the Application be dismissed with costs.

6. Parties filed their written submissions which I have duly considered. The following issues arise for determination: -i.Whether the 1st Respondent’s electronic evidence is admissible.ii.Whether the 2nd Petitioner haslocus standito file the Petition.iii.Whether the 2nd Petitioner committed perjury in his affidavit in support of the Petition and therefore amounts to contempt of court.iv.Whether the Petition and the 2nd Petitioner’s affidavit should be struck out.

Whether the 1st Respondent/Applicant’s Electronic Evidence is Admissible 7. The 1st Respondent/Applicant has anchored his application on the screenshot and the QR Code which allegedly shows that the 2nd Petitioner is not registered as a voter in the Constituency but in Nakuru County, Bahati Constituency - Lanet/Umoja Ward and Lanet Secondary school stream 3 polling station. On their part, the Petitioners have challenged the admissibility of the electronic evidence for want of an electronic certificate as required by Sections 78 and 106B of the Evidence Act. The Petitioners contended that the authenticity of such evidence cannot be ascertained in the absence of a certificate. Notably, the 1st Respondent/Applicant did not speak to this issue in his submissions.

8. Section 78A of the Evidence Act provides as follows on the admissibility of electronic and digital evidence:"(1)In any legal proceedings, electronic messages and digital material shall be admissible as evidence.(2)The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.(3)In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to—(a)the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;(b)the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;(c)the manner in which the originator of the electronic and digital evidence was identified; and(d)any other relevant factor.(4)Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract."

9. Under the foregoing provision, electronic and digital material is admissible in proceedings even if not in its original form. The probative value of such evidence is however dependent upon inter alia the reliability of the manner in which such material is generated, stored or communicated. It is also dependent on the reliability of the manner in which the integrity of such material is maintained. Further, the originator of such evidence must be identified.

10. On admissibility of electronic records, Section 106B of the Act provides:"(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as “computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.(2)The conditions mentioned in subsection (1), in respect of a computer output, are the following—(a)the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;(b)during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;(c)throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and(d)the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.(3)Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of subsection (2) was regularly performed by computers, whether—(a)by combination of computers operating in succession over that period; or(b)by different computers operating in succession over that period; or(c)in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly.(4)In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—(a)identifying the electronic record containing the statement and describing the manner in which it was produced;(b)giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;(c)dealing with any matters to which conditions mentioned in subsection (2) relate; and(d)purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.(5)For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment, whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities."

11. It can be seen from the foregoing that where a party seeks to rely on information contained in an electronic record which is printed on paper, as is the case herein, a certificate must accompany such document identifying the same and describing the manner in which it was produced. The certificate is required to give such particulars of any device involved in the production of that electronic record as may be appropriate, for the purpose of showing that the electronic record was produced by an electronic device. Further, such certificate is to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.

12. In the case of John Lokitare Lodinyo –vs- IEBC and 2 Others [2018] eKLR, the Court of Appeal addressed the question of admissibility of electronic records under S 106B and stated:"54. Essentially, the sections provide that electronic evidence which is printed out shall be treated like documentary evidence and will be admissible without production of the computer used to generate the information. The appellant claimed that his technical team downloaded the forms and had them printed. He admitted that the forms were from the IEBC public portal. Ordinarily, this would have meant accessing the IEBC portal, which one could only do if they had access to the internet, proceeding to log onto the IEBC portal page, clicking on the Forms 35A uploaded on Kacheliba Constituency, downloading the Forms 35A onto the computer’s hard disk and finally printing the documents via a printer connected to the computer.55. It is at this juncture that the provisions of section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do. This Court in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR stated that:“Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.” In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced...”

13. The Court found that the requirement of a certificate is mandatory and that electronic evidence not accompanied by a certificate should not be admitted. The rationale of the requirement being that the certificate vouches for the authenticity of electronic evidence and to prevent the doctoring or manipulating of electronic evidence which is then presented to Court.

14. In the case ofRichard Nyagaka Tong’i v Independent Electoral & Boundaries Commission & 2 othersElection Petition No 5 of 2013 [2013] eKLR Muriithi, J considered a matter where a certificate relating to photographs produced as evidence was not produced and the person who printed the photographs was also not called to testify. The learned Judge rejected the photographs as evidence and stated:"27. In the present case the petitioner has not produced a certificate under section 106B (4) of the Evidence Act and the person who operated the computer and printer during the printing of the photographs was not called to testify as to the condition of the machines and the integrity of process of the printing of the photographs. The person who testified was the photographer who although he stated that he was with the computer operator when the photographs were made cannot vouch for the due operation of the computer and printer and the integrity of the photographs having himself admitted that they would at times sit with the operator to choose colours in which the photographs would be printed. The court cannot rule out the possibility of doctored photographs, and in accordance with section 106B, the photographs are inadmissible and shall not be considered."

15. And in Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] eKLR, Muigai, J"Therefore, although the requirement of the certificate is a procedural and technical matter, Section 106B (4) of the Act is mandatory and cannot be ousted by Article 159 (2) (d) of COK2010. The Constitution of Kenya is supreme law but in application of Article 159 2(d) matters of form the Court may rely on the provision. This Court finds that the mandatory Provisions of the Evidence Act are about form and substance. Before the Court can admit electronic records/evidence a certificate is mandatory to confirm source, process, custody and delivery of the said electronic record before admission so as to preempt manipulation of the record."

16. The learned Judge found, and I agree, that the requirement of a certificate under Section 106B(4) of the Evidence Act is mandatory and goes to the substance of the matter. As such, failure to provide the same cannot be cured by invoking the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 which requires that justice shall be administered without undue regard to procedural technicalities.

17. Having considered the law and the authorities above, I am in agreement with the Petitioners that the authenticity of the electronic evidence exhibited in the Application as demonstration that the 2nd Petitioner is not registered as a voter in the Constituency cannot be ascertained. Accordingly, I find and hold that the said evidence is inadmissible for want of a certificate as required under the Evidence Act and the same is rejected.

Whether the 2nd Petitioner has Locus Standi 18. It is the 1st Respondent/Applicant’s case that the 2nd Petitioner lacks locus standi to file the Petition on account of him not being a resident of registered voter of Kitutu Chache Constituency.

19. To buttress his submission, the 1st Respondent/Applicant relied on the case of Dickson Daniel Karaba v Kibiru Charles Reubenson & 2 others[2018] eKLR where it was held:"65. In this instance the petitioner was a candidate in the August 2017 election and was seeking to represent the interest of Kirinyaga County in the Senate; the first qualifications such a candidate must possess is that he must be resident in Kirinyaga and a registered voter therein; this court makes reference to and is persuaded by to the case of Abdi Khaim Osman Mohamed & Anor vs IEBC and 2 Others (2014) eKLR where it was held;“The learned Judge further got the legal basis right when he stated that the electoral disputes involve not only the parties to the petition, but also the electorate in the concerned electoral area and that they are therefore matters of great public importance and interest” (emphasis mine).66. In the case of Mohammed Ibrahim Abdi vs IEBC and 2 Others Election Petition No 7 of 2017 which is also persuasive the intended petitioners were found to be qualified substitutes on the following grounds;“ …..the applicants have managed to show that they are residents and voters in Mandera North Constituency. In their application is indicated their ID numbers, polling stations and wards. This has not been rebutted by the 1st Respondent. It is the duty of an election court to ensure that the withdrawal of an election petition by a petitioner does not terminate when there is a qualified substitute.”67. Needless to say the applicants have nothing to show that they are from the concerned electoral area; the applicants have averred in their affidavit that they are registered as voters in Nairobi County, in addition to being registered in Muranga and Kisii Counties; and by such an averment the applicants are found to be in contravention of the electoral laws and thus disqualify themselves from any favourable exercise of this court’s discretion;"

20. In rebutting the submissions by the 1st Respondent/Applicant, the Petitioners argued that Article 258 donates standing to persons keen in defending the Constitution through the court process. Further that in the absence of a specific rule on locus, any person can be a petitioner. The Petitioners contended that there is no requirement for a person to demonstrate any interest, other than the need to uphold the Constitution just like in the case herein.

21. The Constitution of Kenya has broadened the avenues of constitutional litigation and removed previous hurdles on access to the Courts. The Constitution has enlarged the scope of locus standi, and has in Articles 22 and 258, empowered every person to move the Courts, contesting any contravention of the Bill of Rights, or the Constitution in general. Article 22 provides:"1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or infringed, or is threatened.2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-a.a person acting on behalf of another person who cannot act in their own name.b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members."

22. Article 258 of the Constitution also provides for enforcement of the Constitution follows:"1. Every person has the right to institute court proceedings, claiming that this constitution has been contravened, or is threatened, or is threatened with contravention;2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-a.A person acting on behalf of another person who cannot act in their own name;b.A person acting as a member of, or in the interest of, a group or class of persons;c.A person acting in the public interest; ord.An association acting in the interest of one or more of its members."

23. Black’s Law Dictionary, 9th Edition defines locus standi as:The right to bring an action or to be heard in a given forum.

24. This right to bring an action was considered in the case of Michael Osundwa Sakwa vs the Chief Justice and President of the Supreme Court of Kenya [2016] eKLR, where Odunga, J (as he then was) after an analysis of local and international decisions on point expressed himself thus:"61. It is therefore clear that over time the issue of standing, particularly in public law litigation has been greatly relaxed and in our case the Constitution has opened the doors of the Courts very wide to welcome any person who has bona fide grounds that the Constitution has been or is threatened with contravention to approach the Court for an appropriate relief. In fact, since Article 3(1) of the Constitution places an obligation on every person to respect, uphold and defend the Constitution, the invitation to approach the Court for redress as long as the person hold bona fide grounds for believing that the Constitution is under threat ought to be welcome. I must however hasten to add that the liberal interpretation does not mean that the rule on locus standi is nolonger relevant in constitutional petitions. Where it is clear that the Petitioner has completely no business in bringing the matter to Court to permit such proceedings to be litigated would amount to the Court itself abetting abuse of its process.62. In this case the Petitioner not only contends that his rights and the rights of others are threatened with violation but that the national values and principles of governance have been violated. In light of such allegations I cannot fault the Petitioner for instituting these proceedings and I hold that he was within his right to commence these proceedings. As to whether his case is merited is another matter. Locus standi is a totally different thing from the merits of the petitioner’s case."

25. In the present case, the issue of locus standi was one of the agreed issues identified for determination during the main hearing of the Petition before Court. The Petitioners case is that the 2nd Petitioner was a registered voter of the Constituency but that on election day, upon presenting himself at the Nyankongo polling station, he was informed that his name could not be found in the electronic register, an error he argued he had no control over but which could only be explained by the 2nd and 3rd Respondents.

26. It is noted that the Application is anchored on the electronic evidence produced by the 1st Respondent/Applicant that the 2nd Petitioner is not a registered voter or a resident of the Constituency. The Court has found that evidence to be inadmissible. In the absence of any other evidence to support the allegations, the Application has no leg to stand on. There is no material placed before the Court to support the claim that the 2nd Petitioner is not registered as a voter in the Constituency. Indeed, the impugned electronic evidence cannot be proof of residence of the 2nd Petitioner. In any event, under Article 258 of the Constitution, every person, including the 2nd Petitioner, has the right to institute court proceedings, claiming that the Constitution has been contravened, or is threatened, or is threatened with contravention. This is what the Petitioners have alleged in the Petition which they have instituted. Accordingly, the claim that the 2nd Petitioner lackslocus standi in this matter is without merit.

Whether the 2nd Petitioner Committed Perjury in His Supporting Affidavit in Support of the Petition and Therefore Amounts to Contempt of Court 27. The 1st Respondent/Applicant contends that based on the claim that the 2nd Petitioner is not a registered voter in the Constituency, he has committed perjury by alleging that he is, and should therefore be cited for contempt.

28. Section 108 of the Penal Codeprovides for the offence of perjury as follows-"(1)(a)Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed perjury.(b)It is immaterial whether the testimony is given on oath or under any other sanction authorized by law.(c)person giving the testimony to speak the truth are immaterial, if he assent to the forms and ceremonies actually used.(d)It is immaterial whether the false testimony is given orally or in writing.(e)It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place or not, if it actually acts as a court or tribunal in the proceeding in which the testimony is given.(f)It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceeding or not.(2)Any person who aids, abets, counsels, procures or suborns another person to commit perjury is guilty of the misdemeanour termed subornation of perjury."

29. The 1st Respondent/Applicant submitted that a petition and the supporting affidavit are inseparable. Given that the Petition herein was signed by both Petitioners and that all their averments begin “with your petitioners”, the perjury then cannot be separated thus the falsehoods presented by both Petitioners vitiate the Petition in its entirety. He relied on the case of Muktar Bishar Sheikh v Independent Electoral & Boundaries Commission & 2 others [2017] eKLR to buttress his submission. The 1st Respondent/Applicant further submitted that a supporting affidavit to an application is subject to striking out and the application founded on it is also fatal. In this regard, he relied on CMC Motors Group Limited v Bengela Arap Korir Trading as Marben School & Another [2013] eKLR.

30. The 1st Respondent/Applicant further cited the case of James Mulinge v Freight Wings Ltd & 3 others [2016] eKLR for the definition of perjury and argued that this petition must fall and be dismissed or struck off for being founded on false statements. Further relying on Odinga & 16 others v Ruto & 10 others; Laws Society of Kenya & 4 others ( Amicus Curiae) ( Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated )) [2022] KESC 54 (KLR) (Election Petitions); James MulingeCase (supra); andJoseph Muiruri Mugo v County Government of Nyeri & 3 others[2021] eKLR, he submitted that perjurious acts are intended to subvert the course of justice and ultimately annihilate the solemn and honourable will and decision of the people of the Constituency in electing him and are an abuse of the court process.

31. On their part, the Petitioners reiterated that the 1st Respondent/Applicant has not tendered any cogent evidence to support the allegation that the 2nd Petitioner is not a registered voter in the Constituency. They argued that owing to the inadmissibility of the electronic evidence, the Court should reject the invitation to make a finding that the 2nd Petitioner is not a registered voter of the Constituency. They further submitted that the 1st Respondent/Applicant is guilty of material non-disclosure by failing to seek the proper factual position before making this application by failing to confirm the registration status of the 2nd Petitioner. He thus proceeded on a wrong factual premise, misled himself and now seeks to mislead the Court to draw a conclusion of perjury. They relied on the case of Brinks – MAT Ltd vs Elcombe (1988) 3 All ER188, to support this submission.

32. The Petitioners further insisted that perjury is a criminal offence and the required standard of proof is beyond reasonable doubt. They contended that the matter is yet to be determined and in the absence of credible evidence, the Court cannot draw conclusions of fact on the commission of perjury.

33. After considering the rival submissions, I agree with the Petitioners that perjury is a criminal offence the standard of proof of which is beyond reasonable doubt. The question as to whether a person is guilty of perjury is the within the purview of a criminal Court. Furthermore, there is need for the 2nd Petitioner to be put to the stand to answer to the charges of perjury, cross examine his accusers and defend himself. Doing the contrary would be an affront to his constitutional right to be heard and to a fair hearing. In any event, the alleged offence of perjury is pegged on the unproven allegation that the 2nd Petitioner is not a registered voter or resident of the Constituency. In light of what the Court has stated on the issue of perjury, it follows that the Court cannot make a finding, as sought by the 1st Respondent/Applicant, that the 2nd Petitioner is guilty of contempt of court.

Whether the Petition and the 2nd Petitioner’s Affidavit Should Be Struck Out 34. The 1st Respondent/Applicant seeks that the 2nd Petitioner’s affidavit should be struck out for the reason that he has no locus standi to bring the Petition. He argued that Rule 8(4) (b) and 12(1) of the Rules provide that a petition must be supported by an affidavit by the petitioner. It must set out the facts and grounds relied on in the petition and therefore any false facts and ground relied in vitiate the entire petition.

35. On their part, the Petitioners submitted that the relief for striking out is misguided and ill conceived. Further that the exit of 1 petitioner should not affect a petition that is brought in the public interest. They contended that the 1st Respondent/Applicant has failed to demonstrate the defect in the Petition or the affidavit of the 1st Petitioner to warrant the striking out of the petition. They urged the Court to sustain the same and proceed to hear the Petition on the merit. They relied on Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] eKLR and argued that a lesser drastic action wold be to strike out the alleged perjured paragraphs or even the perjured affidavit without striking out the Petition.

36. Rules 8 and 12 of the Rules make provision for the Petition and supporting affidavit. In particular Rule 8(4) provides as follows regarding the petition:"The petition shall-(a)be signed by the petitioner or by a person authorised by the petitioner;(b)be supported by an affidavit sworn by the petitioner containing the particulars set out under rule 12; and(c)be in such number of copies as would be sufficient for the election court and all respondents named in the petition."As regards the supporting affidavit, Rule 12 provides:"(1)A petition shall be supported by an affidavit which Affidavits shall-.(a)set out facts and grounds relied on in the petition; and(b)be sworn personally by the petitioner or by at least one of the petitioners, if there is more than one petitioner."

37. I have carefully considered the grounds advanced by the 1st Respondent/Applicant and I find that the conclusions of fact that he is inviting the Court to draw at this stage, are premature considering the veracity of the same cannot be ascertained or subjected to cross examination. I hold the view that it is necessary to subject the matter to a full. Only then will the Court be able to hear the evidence of all parties and make an informed determination. Accordingly, I find no basis for striking out the 2nd Petitioners’ affidavit and the Petition as sought by the 1st Respondent/Applicant.

38. The upshot is that the Application dated 21. 10. 22 lacks merit and the same is hereby dismissed. Costs in the Cause.

DATED AND DELIVERED IN NAIROBI THIS 9TH DAY OF NOVEMBER 2022M. THANDEJUDGEIn the presence of: -……………………… for the Petitioners……………………… for the 1st Respondent…………………… for the 2nd & 3rd Respondents…………….……Court Assistant