[2017] KEHC 2598 (KLR)

IN THE HIGH COURT OF KENYA AT KISUMU

ELECTION PETITION NO. 2 OF 2017

THE ELECTION ACT, 2011

IN THE MATTER OF ELECTION FOR WOMAN REPRSENTATIVE FOR KISUMU COUNTY

BETWEEN

GRACE ADHIAMBO AKUMU………………………………………….……………….PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION…...........1ST RESPONDENT

JOHN COX LORIONOKOU (RETURNING OFFICER KISUMU COUNTY)…....2ND RESPONDENT

ROSA AKINYI BUYU………………………………………………………….….3RD RESPONDENT

RULING

When the petition came up for hearing today, the petitioner through her advocate Mr. Ken Omollo sought leave for extension of time under rule 19 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 to file out of time, the petitioner’s further affidavit and her witnesses’ 4 affidavits filed on 6. 11. 17. It was submitted for the petitioner that failure to file the affidavits within time was caused by an inadvertence on the part of the advocate and that the admission of the affidavits will not prejudice the respondents since the petitioner is introducing a list of her agents which the respondents do not hae to respond to and that the issues raised by the witnesses are contained in the witness statements filed earlier in this petition.

My. Yego for the 1st and 2nd respondents opposed the application on the grounds that it contravenes Rule 12 which requires the petitioner to file affidavit of witnesses at the time of filing the petition. He further submitted that Rule 15(2) of the rules does not allow interlocutory applications after the conclusion of the pre-trial conference and that the present application ought to have been made before 12. 10. 17 when the pretrial conference was concluded. It was further submitted for the 1st and 2nd respondents that the petitioner had 28 days under Article 87 of the Constitution to prepare and file her petition and supporting affidavits and that this application that is made 60 days after the petition was filed is not merited and is meant to delay the hearing and conclusion of the petition. It was finally submitted for the 1st and 2nd respondents that the petitioner seeks to introduce new evidence that will have the effect of changing the nature of the petition and that the respondents will be prejudiced. He relied on Kitale Election Petition No. 1 of 2017 Robinson Simiyu Mwanga & Another v IEBC & 2 Others.

Mr. Awele for the 3rd respondent associated himself with the submission made for the 1st and 2nd respondents. In addition, he submitted that election petitions are unique and time bound and that the affidavits filed out of time are an afterthought and ought to be struck out.

I have carefully considered the submission by counsels. The pretrial conference in this matter was held on 12. 10. 17 and the court gave directions including setting the petition down for hearing from today 6th November 2017 to 10th November 2017.

Section 12 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provides as follows:

(3) Each person who the petitioner intends to call as a witness at the hearing shall swear an affidavit.

(4) A petitioner shall, at the time of filing the petition, file the affidavits sworn under sub-rule (3).

In the case of Raila Odinga & Others v. Independent Electoral and Boundaries Commission & Others, Petition No. 5 of 2013 (as consolidated with Petition No. 3 and 4 of 2013) , the court in rejecting an affidavit filed out of time held that additional facts and evidence tends to introduce new matters as would change the character and nature of the petition. There is no evidence that the evidence sought to be introduced was not available to the petitioner when she filed this petition. Having said that, I find that the introduction of the new affidavits will no doubt introduce new evidence out of time and the respondents will no doubt be prejudiced since they will be required to seek witnesses within the limited time frame to respond to the new evidence.

Further to the foregoing, I find that it is the duty of this court to guard against the ceaseless back and forth that would ensue if the exchange in filing of affidavits is not closely supervised by the court. The extension sought by the petitioner is made too late in the day and it does not promote the timely resolution of disputes under Articles 87 (1) and 159(2) (b) of the Constitution.

In any case, the interlocutory application could have, by its nature, been brought before the conclusion of the pretrial conference on 12. 10. 17 or before today when the petition is scheduled to commence

Consequently, the application for admission of the petitioner’s and her 4 witnesses’ affidavits filed on 6. 11. 17 is not merited and it is disallowed and the said affidavits are expunged from the court record.

DATED AND DELIVERED THIS 8th DAY OF November, 2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Petitioner - Mr. Omollo & Mr. Odhiambo

1st and 2nd Respondent - Mr. Yego

3rd respondent _ Mr. Awele