[2013] KEMC 80 (KLR)
The court held that the orders sought for the production of ballot papers, counterfoils, and summoning of specific witnesses go to the root and substance of the main petition and cannot be granted at the interlocutory stage. Such orders should only be considered after the court has heard all the evidence to be...
Source-derived case information.
- Citation
- [2013] KEMC 80 (KLR)
- Parties
- Applicant: Kennedy Mose Nyagwaya; Respondent: The Independent Electoral & Boundaries Commission; Respondent: Moses Opiyo Ahere; Respondent: Kennedy Michira Mainya
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 3 of 2013
- Procedural Posture
- Election Petition / Interlocutory Application (notice of Motion) Seeking Production of Documents and Witness Summons Prior to Main Hearing
- Outcome
- Application suspended; orders sought to be determined at main hearing; costs in the cause.
- Legal Topics
- Production of Evidence, Disclosure of Ballot Materials, Witness Summons, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Mose Nyagwaya
Applicant
The Independent Electoral & Boundaries Commission
Respondent
Moses Opiyo Ahere
Respondent
Kennedy Michira Mainya
Respondent
Procedural Posture
Election Petition / Interlocutory Application (notice of Motion) Seeking Production of Documents and Witness Summons Prior to Main Hearing
Legal Issues
- 1 Whether the court should order the production of ballot papers, counterfoils, and occurrence book entries prior to the hearing of the main petition.
- 2 Whether the court should summon specific witnesses and direct the respondents to produce election materials at the interlocutory stage.
- 3 Whether conflicting affidavits by a witness affect the admissibility or credibility of evidence at this stage.
Ratio Decidendi
The court held that the orders sought for the production of ballot papers, counterfoils, and summoning of specific witnesses go to the root and substance of the main petition and cannot be granted at the interlocutory stage. Such orders should only be considered after the court has heard all the evidence to be adduced by the parties in support of their respective cases. The court further held that all parties will have the opportunity to test the credibility of witnesses, including those who have filed conflicting affidavits, during the main hearing through examination and cross-examination. Accordingly, the application was suspended and kept in abeyance for determination during the...
Court Disposition
Application suspended; orders sought to be determined at main hearing; costs in the cause.
Orders
- The notice of motion application dated 14th May, 2013 is suspended and kept in abeyance to be determined during the hearing of the main petition.
- All parties are directed to proceed to pre-trial for confirmation of witnesses, contested and uncontested issues, and further evidence.
Full Case Text
Judgment text and source record
34 paragraphs
THE CHIEF MAGISTRATE'S COURT AT KISII
ELECTION PETITION NO. 3 OF 2013
IN THE MATTER OF ELECTION ACT 24 OF 2011 AND ELECTION (PARLIAMENTRAY AND COUNTY ELECTION ) PETITION RULES-2013,
AND
IN THE MATTER OF ELECTION OF THE COUNTY ASSEMBLY REPRESENTATIVE FOR KIAMOKAMA COUNTY ASSEMBLY WARD
AND
IN THE MATTER;- OF THE PETITION OF KENNEDY MOSE NYAGWAYA
BETWEEN
KENNEDY MOSE NYAGWAYA.....................................................PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISION........................................................................1ST RESPONDENT
MOSES OPIYO AHETE......................................................2ND RESPONDENT
KENNEDY MICHIRA MAINYA ….......................................3RD RESPONDENT
RULING
The notice of motion application dated 14th May, 2013 filed on th 15th day of May ,2013 brought under rule 17 of the election (parliamentary and county election) petition rules – 2013 seeks inter alia for the following reliefs;-
(a) That the Honourable court be pleased to summon:-
The chief of NYARIBARI CENTRAL LOCATION to produce the photo copies of the ballot papers in his custody.
That District Commanding Investigation Officer Kisii central District to produce the ballot papers which were handed over to him by the in charge of Ibacho Patrol Base.
The in-charge of Ibacho Patrol Base to produce the O.B of 15th March, 2013.
(b) That the Honourable court be pleased to order and direct the 1st and 2nd respondent to produce all the counter-foils of all the ballot booklets in all polling stations in Kiamokama County Assembly ward.
The application was supported by the sworn affidavit of the petitioner KENNEDY MOSE NYAGWAYA. It is not however, as rightly contended by the Respondents counsels whether the affidavit sworn by one METHUSELA MOBISA ONDIMU, attached to the application was in support of the presented application or some was unrelated to the presented application, which fact would comment and at a later stage during the ruling.
The 1st and 2nd Respondent through the 2nd Respondent MOSES OPIYO AHERE filed a replying (undated) affidavit thereto, filed today 21st May, 2013. The 3rd Respondent was yet to file a response thereto as at the time this matter came up for directions on the hearing and disposal of the application.
I have heard the rivaling arguments made by all the counsels on record for the parties herein for and against the presented application. I have also perused the entire record, the filed petition and the filed answers hereto, supported by wetnesses and their respective sworn affidavit of evidence and the documentary evidence attached therewith.
I do find, for a fact that the Witness sought to be called in evidence in this petition are well captured in the petitioner's sworn affidavit of evidence dated 10th April , 2013 filed in court on the even date and those of the rest of the witnesses, no tally NATHAN RATEMO ONDABA AND METHUSELA MOBISA ONDIMU
secondly, I further hold that the prayers sought under the second limb of the presented application for the court to issue order directing of the 1st and 2nd Respondent to produce all the count foils of all the ballot booklets in all the polling station in Kiamokama County Assembly ward can only obtained upon the court making a finding upon hearing all the evidence to be adduced by parties in support of their respective cases herein.
Thirdly, although, it was not as issue argued in this application and which issue is contentious to all the parties to this petition. In my humble view, all parties during trial of the petition shall be accorded the chance and the opportunity to test the veracity, truthfulness and the credibility of one METHUSELA MOBISA ONDIMU, a witness who has hitherto sworn and filed conflicting set of affidavits herein, through examination in chief under oath, across examination and re-examination.
The net result of my afore stated observations are that the prayers sought in the presented notice of motion application dated the14th May, 2013 filed in the 15th May, 2013 cannot obtain at such an interlocutory stated, which prayers – in my respectful view go to the roots and substance of the entire petition and in this regard hereby order and direct that the said presented application is hereby suspended, kept in limb and / or absence for the court to make a finding thereof during the course of hearing of the main petition and upon hearing the evidence to be adduced by the respective witnesses herein. In many event , it cannot be gainsaid or over emphasized that the honourable court during the course of discharging its Judicial functions and in administering Justice to all, can not hesitate to call in evidence any person or persons , who in its opinion or finding would assist the court in arriving at a fair and just decision in the matter.
And taking cognizance of the overriding objectives of the election a (parliamentary and County elections) petition rules 2013, now direct all parties to this petition to and in compliance of section 17 of the rules thereof do hereby direct and order all parties to this petition to proceed. For the pre-trial session of the matter, for parties to confirm court the names of witnesses they intend to call, the confirmed contested and uncontested issues and further evidence to be adduced by parties if any, so as to enable the court set down the hearing of the main trial of the petition as envisaged under section 17 (h) of the election rules costs of the presented notice of motion application to be in the cause.
It is so ordered and directed.
K. SAMBU PM
21. 5.2013
Court- Ruling read and delivered in open court on the 21st May, 2013 in the presence of Mr. Mongare ,court clerk, Mr. Momanyi Aunga counsel for the petitioner, Mr. Masagwe counsel for the 1st and 2nd respondent and Mr. Nyamweya counsel for the 3rd respondent.
K. SAMBU PM
21. 5.2013. m