[2017] KEHC 2268 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF: THE CHALLENGE OF THE VALIDITY OF THE MANDERA

COUNTY GOVERNOR ELECTION, 2017

AND

IN THE MATTER OF: ARTICLE 1 (1); 2(2); 3(1); 4(2); 10; 21(1); 23; 38(3) (c); 47(2); 48; 81(a); & (e); 82(2) (b); 84; 86; 87(2) & (3); 88(5); 165(3) (a) AND

(e); & 180 (1) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: SECTION 75, 76, 80 AND 82 OF ELECTIONS ACT NO. 2 OF 2011

AND

IN THE MATTER OF: LEGAL NOTICE NO.128 OF 2012, THE ELECTIONS (GENERAL)

REGULATIONS, 2012

AND

IN THE MATTER OF: THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS)

PETITION RULES, 2017

AND

IN THE MATTER OF: LEGAL NOTICE NO. 126 OF 2012 (THE ELECTIONS

REGISTRATION OF VOTERS) REGULATIONS, 2012

AND

HASSAN NOOR HASSAN.......................................PETITIONER /APPLICANT

VERSUS

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION [I.E.B.C]..............................1ST RESPONDENT

THE MANDERA COUNTY RETURNING OFFICER

(DAVID MARO ADE).............................................................2ND RESPONDENT

ALI IBRAHIM ROBA.............................................................3RD RESPONDENT

MOHAMED AHMED ARAI....................................................4TH RESPONDENT

RULING NO. 2

1. On 31st October 2017, after the respondents had cross-examined the 15th witness who had testified for the petitioner, there arose a serious issue.

2. Prof. Ojienda, the learned advocate for the petitioner informed the court that 2 of the persons who are supposed to be witnesses for the 3rd and 4th Respondents had been sitting in court throughout the trial, todate.

3. The said 2 persons were said to be NOOR MUSA and MOHAMED ABDI OMAR.

4. As they had been sitting in court during the time when the petitioner’s witnesses were testifying, the petitioner asked the court to disqualify them from testifying.

5. Mr. Ahmednasir SC, the learned advocate for the 3rd and 4th Respondents told the court that he was not in court on the day when the court had given Directions, that all witnesses who were yet to give their evidence should stay outside court.

6. He submitted that their witnesses could remain inside the court during the time when the petitioner was putting forward his evidence, and that the witnesses for the respondents should only be obliged to stay outside the court-room when the respondents had started putting forward their case.

7. In his considered opinion, the fact that the witnesses had heard the petitioner’s case did not add anything to the case which the respondents would be making.

8. Mr. Ahmednasir concluded by saying that there were no grounds for disqualification of the witnesses who had sat through the testimonies of the petitioner’s witnesses.

9. At that point, the court asked counsel why the respondents did not take up the issue when the court had directed that witnesses who had not testified should remain outside the court.

10. The answer by Mr. Ahmednasir was that the directions had been given in his absence, and that if he had been present, he would have clarified the position.

11. Prof. Ojienda told the court that his colleague, Mr. Ahmednasir was well aware that even during the hearing of the “Waititu Election Petition”, Mwongo P J had given directions similar to those which I gave in this case.

12. As far as the petitioner was concerned, the evidence of a witness who had sat in court before he had testified, is then expunged from the record.

13. The petitioner added that the probative value of the evidence of such a witness should be noted by the court. The reason for that contention was that when a witness gave his evidence on matters about which other witnesses had testified, that breeds an unfair playing ground because he can fashion his answers to suit the case.

14. Prof. Ojienda went on to say that Mr. Issa Mansur, the learned advocate appearing together with Mr. Ahmednasir SC, was a seasoned lawyer. Therefore, the absence of Mr. Ahmednasir from the court, on the day when the court gave its Directions was seen as being incapable of taking away anything from the respondents, as the said respondents had adequate legal representation.

15. The court then inquired from Prof. Ojienda about the length of time when he had been aware that the witnesses complained about had been sitting in court.

16. He said that he had been informed about the witnesses, on that very morning, and that he had intended to raise the issue with the court. However, the witnesses had then left the court, before returning later.

17. The petitioner pointed out that the witnesses had been coming into the court, but would then leave when they noticed that some of the petitioner’s witnesses had noted their presence.

18. Counsel emphasized that it was within the knowledge of the 2 witnesses that they should not have been sitting in court.

19. In light of the contention that the witnesses had been coming into court and then leaving every so often, the court sought to know from the petitioner how it would be possible for the court to ascertain how much of the evidence the witnesses had heard.

20. The intent and purpose of making that inquiry was to try and make some assessment of the prejudice, if any, that the petitioner would have suffered or could suffer due to the presence of the witnesses of the respondents.

21. The answer was that the witnesses had sat in court all through the sessions on Monday 30th October 2017, and also during today’s sessions.

22. Finally, Mr. Ahmednasir submitted that the court needs to put the matter within context, considering that evidence in election petitions is given through affidavits. In his view, as the affidavits had been shared with the petitioner, the witnesses could not add to their evidence.

23. Mr. Ahmednasir concluded by tendering an unreserved apology to the court, for the conduct of the two witnesses.

24. In determining this application, I begin by reiterating the fact that when the election court gives Directions at the pre-trial conference, the same are calculated and intended to facilitate the just and expeditious hearing and determination of the petitions.

25. Therefore, it is expected that each and every party to an election petition must take seriously the whole process of the pre-trial conference.

26. Unless the court and the parties participate effectively at that stage, and thereafter adhere to the Directions made, there would be a real danger that the proceedings could be derailed.

27. Considering the Constitutional Imperative that election petitions must be concluded within six (6) months of the declaration of results of an election, the courts are obliged to be fair yet firm.

28. The absence of lead counsel from the court, at the pre-trial conference or on the day when the election court is giving directions to govern the trial, is not reason enough to warrant a review of the directions.

29. Every party has an equal chance to persuade the court during the pre-trial conference, about what directions would be most appropriate to facilitate expedition and fair play at the trial. If any party abdicates from playing its role at that stage, it should not be heard to thereafter criticize the directions.

30. In this case, I have been told that the 2 witnesses have been in court throughout the proceedings todate. But I have also been told that the witnesses having been coming into and going from the court, every so often. Therefore, although the witnesses have definitely been in court when they ought not to have been there, if they respected the court’s directions, I also do not appreciate why the respondents had not complained about that fact much sooner.

31. By remaining silent for so long, in the face of the violation of the court’s directions, the respondents appear to have been condoning it.

32. At any rate, the petitioner does not appear to have been too bothered by the presence of the said witnesses in court, for almost 2 days.

33. I cannot therefore help but wonder why the petitioner was suddenly jolted into action after remaining dormant for almost 2 days.

34. The action of the witnesses was wrong. But the reaction of the petitioner was equally wrong.

35. The next issue which I must now address is whether or not the affidavits of the 2 witnesses should be expunged from the court records.

36. In that regard, it must be acknowledged that during the trial of election petitions, all witnesses must swear affidavits, which then constitute their evidence-in-chief.

37. In line with that rule, the witnesses in issue did swear and file their affidavits. The said affidavits were already within the knowledge of the petitioner. Therefore, the petitioner already knows exactly the nature and scope of the evidence to be tendered by the 2 witnesses.

38. Accordingly, I hold the view that the witnesses have not derived any advantage over the petitioners, because the witnesses will not have an opportunity of offering any more evidence, in addition to what is already in their respective affidavits.

39. The only way that the witnesses could expand their evidence, is when they were being cross-examined by the petitioner. Therefore, it is entirely in the hands of the petitioner to determine whether or not to keep the 2 witnesses within the scope of the evidence which they have already offered through their affidavits.

40. Accordingly, there is no reason to expunge the affidavits from the record.

41. Nonetheless, I order that the 3rd and 4th respondents do pay to the petitioner, the costs of the application herein.

DATED, SIGNED and DELIVERED at NAIROBI this1st dayof November2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Prof Ojienda, Hassan & Miss Awuori for the Applicant/Petitioner

Nyamodi & Miss Kitur for the 1st Respondent

Nyamodi & Miss Kitur for the 2nd Respondent

Ahmednasir SC, Issa, Busaidy & Mrs. Ahomo for the 3rd Respondent

Ahmednasir SC, Issa, Busaidy & Mrs. Ahomo for the 4th Respondent

Collins Odhiambo – Court clerk.