[2013] KEHC 5845 (KLR)
The court held that the mere presence of a witness in court during the testimony of other witnesses does not justify the exclusion of that witness's evidence. The correct approach is to admit the evidence and consider the fact of the witness's presence in court only when assessing the weight to be given to their...
Source-derived case information.
- Citation
- [2013] KEHC 5845 (KLR)
- Parties
- Petitioner: John Oroo Oyioka; Respondent: Independent Electoral and Boundaries Commission; Respondent: Peter Resa, Returning Officer; Respondent: Zebedeo John Opore; Petitioner: Nyabaro Onditi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Election Petition 2 & 4 of 2013
- Procedural Posture
- Election Petition / Interlocutory Ruling on Admissibility of Witness Evidence
- Outcome
- Application to expunge affidavit dismissed; evidence admitted.
- Judges
- AT Sitati
- Legal Topics
- Admissibility of Evidence, Witness Exclusion Rule, Weight of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Oroo Oyioka
Petitioner
Independent Electoral and Boundaries Commission
Respondent
Peter Resa, Returning Officer
Respondent
Zebedeo John Opore
Respondent
Nyabaro Onditi
Petitioner
Procedural Posture
Election Petition / Interlocutory Ruling on Admissibility of Witness Evidence
Legal Issues
- 1 Should the evidence of a witness who was present in court during the testimony of other witnesses be rejected in an election petition?
- 2 Does the presence of a witness in court before testifying affect the admissibility or only the weight of their evidence?
Ratio Decidendi
The court held that the mere presence of a witness in court during the testimony of other witnesses does not justify the exclusion of that witness's evidence. The correct approach is to admit the evidence and consider the fact of the witness's presence in court only when assessing the weight to be given to their testimony. The court relied on the authority of Waithaka & another v Republic [1972] EA 184, which established that excluding such evidence would violate the parties' right to present their case. Accordingly, the application to expunge the affidavit of Atandi Machuka was dismissed, and the evidence was admitted, with the caveat that its weight would be evaluated in light of the...
Court Disposition
Application to expunge affidavit dismissed; evidence admitted.
Orders
- The application by the respondents to expunge the affidavit of Atandi Machuka is dismissed.
- The evidence of Atandi Machuka shall be admitted, with its weight to be determined by the court.
Full Case Text
Judgment text and source record
54 paragraphs
No.784
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
ELECTION PETITION NO.2 OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE ELECTIONS ACT, NO. 24 OF 2011
AND
IN THE MATTER OF INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT NO.9 OF 2011
AND
IN THE MATTER OF ELECTION FOR BONCHARI CONSTITUENCY (NO.261)
BETWEEN
JOHN OROO OYIOKA …………………………………...……..…. PETITIONER
AND
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ……………………….…..……. 1ST RESPONDENT
PETER RESA, RETURNING OFFICER ……………..….….... 2ND RESPONDENT
ZEBEDEO JOHN OPORE ………………….……………….…. 3RD RESPONDENT
CONSOLIDATED WITH
ELECTION PETITION NO. 4 OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE ELECTIONS ACT, NO. 24 OF 2011
AND
IN THE MATTER OF INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT NO.9 OF 2011
AND
IN THE MATTER OF ELECTION FOR BONCHARI CONSTITUENCY (NO.261)
BETWEEN
NYABARO ONDITI ………………………………………...……...…. PETITIONER
AND
ZEBEDEO JOHN OPORE ………………..………….……….…. 1ST RESPONDENT
PETER RESA, RETURNING OFFICER …………………….... 2ND RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ………………………….……. 3RD RESPONDENT
EP NO.2 OF 2013 AND NO. 4 OF 2013 (CONSOLIDATED) (RULING)
RULING
At the close of the session yesterday, 24th June 2013, the court was informed by Mr. Nyaundi, counsel for the 3rd Respondent that one Atandi Machuka, a witness for the Petitioner in Petition No. 4 of 2013 had been in court during the taking of evidence of the Petitioner in EP No.2 of 2013. The witness had admittedly been in court during the afternoon session. Mr. Nyaundi asked the court to expunge the affidavit sworn by Mr. Atandi Machuka from the record. Mr. Nyaundi was supported by Mr. Nyaenda who appears together with him. He was also supported by Mr. Rigoro for the 1st and 2nd Respondents in EP No.2 of 2013.
The application was opposed by Mr. Omwenga, counsel for the Petitioner in EP No.4 of 2013. Counsel argued that the best course of action regarding the said witness was to allow his evidence to be taken but the court has to treat such evidence with caution. Counsel urged the court not to expunge the affidavit evidence by Atandi Machuka.
After hearing the competing submissions, the issue that arises for determination is whether or not the evidence of a witness who sits in court when other witnesses are testifying should be rejected. In my considered view, the answer is no.
In Waithaka & another –vs- Republic [1972] EA 184 the trial court refused to hear the evidence of one witness for the appellants who was present in court throughout the hearing. As a result of not admitting the evidence of that witness by the trial court the appellants were convicted of robbery with violence.
EP NO.2 OF 2013 AND NO. 4 OF 2013 (CONSOLIDATED) (RULING)
On appeal, to the High Court at Nairobi, it was held that refusal by the trial court to hear the appellants’ witness who was available and ready to give evidence was a violation of their mandatory right to put their defence and fatal to their convictions. The court held that the evidence of such witness should be taken and the fact of his or her presence in court would then go to the weight to be attached to such evidence. I entirely agree with the view held by the Court in the Waithaka case and hold that the presence of Atandi Machuka in court during the hearing of the evidence of the Petitioner in EP No.2 of 2013 shall only affect the weight to be placed on that evidence by this court.
The application by the Respondents’ counsel is accordingly dismissed. Costs shall abide the outcome of the petition.
It is so ordered.
Dated and delivered at Kisii this 25th day of June 2013
RUTH NEKOYE SITATI
JUDGE
In the presence of
Mr. Nyamweya for Petitioner in EP No.2/2013
Mr. Omwenga for Petitioner in EP No.4/2013
Mr. Rigoro for 1st and 2nd Respondents in EP 2/2013 and 2nd and 3rd Respondents in EP NO.4/2013
M/s Nyaundi and Nyaencha for 3rd Respondent in EP No.2/2013 and 1st Respondent in EP No.4/2013
M/s Bibu and Kasera - Court Clerks
EP NO.2 OF 2013 AND NO. 4 OF 2013 (CONSOLIDATED) (RULING)