[2013] KEMC 83 (KLR)
The court held that the 3rd petitioner, as a mandatory witness, must testify in court and be available for cross-examination. The rules require that only affidavits of witnesses who are intended to be called and made available for cross-examination are admissible. Admitting affidavits that have not been tested by...
Source-derived case information.
- Citation
- [2013] KEMC 83 (KLR)
- Parties
- Applicant: Mwangi Kimwele; Applicant: Said Mangale Kombo Juma Athuman Lubambo; Applicant: Juma Athuman Lubambo; Applicant: Charles Mwadime Kiridia; Applicant: Humphrey Kalama Fondoson; Respondent: Kibwana Saleh Baya; Respondent: Neema Karisa; Respondent: Independent Electoral & Boundaries Commission
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 2 of 2013
- Procedural Posture
- Election Petition / Interlocutory Ruling on Admissibility of Affidavits and Dismissal of 3rd Petitioner's Petition
- Outcome
- Partial dismissal of petition; affidavits expunged.
- Legal Topics
- Admissibility of Affidavits, Mandatory Witnesses, Cross Examination Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwangi Kimwele
Applicant
Said Mangale Kombo Juma Athuman Lubambo
Applicant
Juma Athuman Lubambo
Applicant
Charles Mwadime Kiridia
Applicant
Humphrey Kalama Fondoson
Applicant
Kibwana Saleh Baya
Respondent
Neema Karisa
Respondent
Independent Electoral & Boundaries Commission
Respondent
Procedural Posture
Election Petition / Interlocutory Ruling on Admissibility of Affidavits and Dismissal of 3rd Petitioner's Petition
Legal Issues
- 1 Whether the affidavit of the 3rd petitioner can be admitted in evidence without his oral testimony and cross-examination.
- 2 Whether affidavits of other witnesses not available for cross-examination can be admitted.
- 3 Whether the 3rd petitioner's petition can stand without his oral evidence.
Ratio Decidendi
The court held that the 3rd petitioner, as a mandatory witness, must testify in court and be available for cross-examination. The rules require that only affidavits of witnesses who are intended to be called and made available for cross-examination are admissible. Admitting affidavits that have not been tested by cross-examination would prejudice the respondents, especially where adverse allegations are made. Since the 3rd petitioner was unavailable and could not be cross-examined, his petition could not stand on affidavit evidence alone. Consequently, the 3rd petitioner's petition was dismissed with costs, and the affidavits of other witnesses not available for cross-examination were...
Court Disposition
Partial dismissal of petition; affidavits expunged.
Orders
- The petition by the 3rd petitioner is dismissed with costs to the respondents.
- Affidavits of Musiwa Hassan Ali, Victor Musee Owino, and Riwa Mwangolo are expunged from the record.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
INTHE CHIEF MAGISTRATE’S COURT ATMOMBASA
ELECTION PETITIONCASENO. 2 OF 2013
1. MWANGI KIMWELE
2. SAID MANGALE KOMBO JUMA ATHUMAN LUBAMBO
3. JUMA ATHUMAN LUBAMBO
4. CHARLES MWADIME KIRIDIA
5. HUMPHREY KALAMA FONDOSON……………......................................PETITIONERS
VERSUS
1. KIBWANASALEH BAYA
2. NEEMA KARISA
3. INDEPENDENT ELECTORAL & BOUNDARIESCOMMISSION……..RESPONDENTS
RULING
On 22. 7.2013, Mr. Lumatete counsel for the petitioner indicated that he was unable to trace the 3rd petitioner, Juma Athumani Lubambo who was said to have taken up employment outside Mombasa. He could also not avail other witnesses.
Mr. Buti objected to the possibility that affidavits of the 3rd petitioner and that of the remaining witnesses being admitted in evidence.He argued that as a petitioner the 3rd petitioner is a mandatory witness as per rule 10 (3) (b), Rules 11 (1) and 12 (1) of the elections (parliamentary and county elections petition Rules 2013.
Miss Ngugi for the 2nd and 3rd petitioners associated herself withMr. Butis position.
I will first consider the position of the 3rd petitioner who is said to be unavailable. As the one of the petitioner the 3rd petitioner is hereby a mandatory witness whose evidence is subject to it being cross-examined by the respondents. So he must first testify in court. On the other witnesses. Rule 12(1) of the Election Rules states.
"A petitioner at the time of filling the petition. File an affidavit sworn by each witness whom the petitioner intends to call at the trial.
The term calling a witness means availing him/her for the purposes of being cross - examined and if need be re-examined.So that they can expound or clarify on a substance of facts that are contained in the affidavit This is very important especially on the contested issues.
In the case of Peter Gichuki Kurigar versus independent Electoral
Boundaries Commission and 2 others [2013]eKLR HC Nyeri Election petition no. 3/13.
The court had this to say on Rule 12(1) above
"It is apparent from this rule that it is only those affidavits for witnesses that the petitioner intends to call that are relevant.I is logical that an affidavit of a person the petitioner has no intention of calling as witness is irrelevant and has no place under rule 12 (1) of the rules. I have not found any other place in the rules where suchan affidavit can fit. Without the requisite legal backing such an affidavit would be a strange document to the petition and would not form part of the record of the trial contemplated under rule 12(2) (c) further to admit affidavits which have not been tested on Cross examination would therefore highly prejudice the respondent where adverse allegations have been made.
I therefore order that the petition as by 3rd petitioner who is unable to come to court to be cross-examined and re-examined by counsel
Cannot stand on just documents.It has not been proved and for this
reason I hereby dismiss the 3rd petitioner petition as against the respondent with costs to the respondents. I also consequently order the affidavits of
Musiwa Hassan Ali
Victor Musee Owino
Riwa Mwangolo be expunged from the records.
J. Gandani-SPM
29/7/2013
Read in Open court this 29. 7.2013 1n the presence of Mr.Buli Mr. Luma tete and Miss Ngugi
Before J. Gandani -SPM
Court clerk Jebel
Buti
For our case I have 2 witnesses.suggest we proceed on
31/7/2013
J. Gandani -SPM
2917/2013
Lumatete
We can take 2 days.
Ngugi
No objection
Court
Hearing on 31/7/2013 at 11. 00 a.m and 1. 8.2013 at 9. 00 a.m.