[2017] KEHC 910 (KLR)
The court held that the Petitioner could not introduce evidence of communication with the Returning Officer regarding the Kajaja II polling station because this matter was not pleaded in the petition or supporting affidavit. The Election Petition Rules require that all evidence be disclosed in advance through...
Source-derived case information.
- Citation
- [2017] KEHC 910 (KLR)
- Parties
- Petitioner: Idris Abdi Abdullahi; Respondent: Ahmed Bashane; Respondent: Independent Electoral & Boundaries Commission (IEBC); Respondent: Siyat Mahat Sabul
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Election Petition 6 of 2017
- Procedural Posture
- Election Petition / Ruling on Objection During Hearing
- Outcome
- Objection upheld; evidence expunged from record.
- Judges
- MW Muigai
- Legal Topics
- Pleadings and Affidavits, Admissibility of Evidence, Election Petition Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Idris Abdi Abdullahi
Petitioner
Ahmed Bashane
Respondent
Independent Electoral & Boundaries Commission (IEBC)
Respondent
Siyat Mahat Sabul
Respondent
Procedural Posture
Election Petition / Ruling on Objection During Hearing
Legal Issues
- 1 Whether the Petitioner can introduce evidence of communication with the Returning Officer regarding Kajaja II polling station that was not pleaded in the petition or supporting affidavit.
- 2 Whether such evidence is admissible under the Evidence Act and the Election Petition Rules.
Ratio Decidendi
The court held that the Petitioner could not introduce evidence of communication with the Returning Officer regarding the Kajaja II polling station because this matter was not pleaded in the petition or supporting affidavit. The Election Petition Rules require that all evidence be disclosed in advance through affidavits, and parties are bound by their pleadings. Allowing the Petitioner to introduce new evidence at this stage would prejudice the Respondents, who would not have had an opportunity to prepare for or address the issue. The court therefore expunged the testimony regarding communication with the Returning Officer from the record.
Court Disposition
Objection upheld; evidence expunged from record.
Orders
- The aspect of communication between the Returning Officer and the Petitioner on the issues raised with regard to Kajaja II Polling Station is hereby expunged from the Court record.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
ELECTION PETITION NO. 6 OF 2017
IN THE MATTER OF PARLIAMENTARY ELECTION FOR TARBAJ CONSTITUENCY (WAJIR COUNTY)
BETWEEN
IDRIS ABDI ABDULLAHI.......................................................PETITIONER
VERSUS
AHMED BASHANE......................................................1ST RESPONDENT
INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION (IEBC).......................2ND RESPONDENT
SIYAT MAHAT SABUL................................................3RD RESPONDENT
RULING (4)
OBJECTION
On 13th December 2017, the 2nd & 3rd Respondents’ through Counsel raised objection to the Petitioner’s testimony that when the Petitioner received information of the varying votes of Kajaja 2 he raised the issue with the Returning Officer. The 1st Respondent associated himself with the 2nd & 3rd Respondents’ objection.
The Petitioner through Counsel relied on Section 6 of the Evidence Act that relates to facts which though not in issue are also connected with facts in issue so as to form part of the same transaction are relevant, whether they occurred at the same time or place or at different times and places.
COURT
This Court is guided by the Election (Parliamentary & County Election) Petition Rules 2017. Rule12 (8) which states;
Except with leave of the Election Court and for system cause, a witness shall not give evidence unless an affidavit sworn by the witness is filed as required under this rules.
The Evidence Act Cap 80 binds all Courts in all proceedings but in addition the Election (Parliamentary & County Elections Petition Rules) 2017 are specific to conduct of the instant election petition.
The Petitioners Petition and Supporting Affidavit do not confirm any meeting and/or communication between the Petitioner and Returning Officer in relation to matter raised in regard to the election in Kajaja II. To spring the same examination -in -chief is to prejudice the 1st, 2nd & 3rd Respondents as they have not had the opportunity to prepare and address the pertinent issue as it is not pleaded anywhere in the pleadings.
Parties are bound by pleadings and he who alleges must prove. Each party at the commencement of the hearing is aware of the case and ought to prepare for the case at hand and not on upcoming issues. For these reason, the aspect of communication between the Returning Officer and the Petitioner on the issues raised with regard to Kajaja II Polling Station is hereby expunged from the Court record.
M. W. MUIGAI
JUDGE
13. 12. 2017
IN THE PRESENCE OF:
MR OMWENGA FOR PETITIONER
MR WANJOHI FOR 1ST RESPONDENT
MR OLAHA FOR 2ND & 3RD RESPONDENTS