[2013] KESC 1 (KLR)

Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 1 (KLR) (26 March 2013) (Ruling)

Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR

Neutral citation: [2013] KESC 1 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 5, 3 & 4 of 2013 (Consolidated)

WM Mutunga, CJ & P, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ

March 26, 2013

Between

Raila Odinga

1st Petitioner

Moses Kiarie Kuria

2nd Petitioner

Denis Njue Itumbi

3rd Petitioner

Florence Jematiah Sergon

4th Petitioner

Gladwell Wathoni Otieno

5th Petitioner

Zahid Rajan

6th Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Ahmed Issack Hassan

2nd Respondent

Uhuru Kenyatta

3rd Respondent

William Samoei Ruto

4th Respondent

As consolidated with

Petition 3 of 2013

Between

Moses Kiarie Kuria

1st Petitioner

Denis Njue Itumbi

2nd Petitioner

Florence Jematiah Sergon

3rd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Ahmed Issack Hassan

2nd Respondent

As consolidated with

Petition 4 of 2013

Between

Gladwell Wathoni Otieno

1st Petitioner

Zahid Rajan

2nd Petitioner

and

Ahmed Issack Hassan

1st Respondent

Uhuru Kenyatta

2nd Respondent

William Samoei Ruto

3rd Respondent

Substance and time constraints in filing further evidence in a presidential election petition.

Reported by Emma Kinya Mwobobia

Election Law- presidential election petition - procedure for filing of documents in a presidential election petition - affidavit - affidavit evidence – time prescribed for determination of a presidential election petition – where the petitioner had filed a further affidavit after the respondents had filed their replying affidavits - limitation of time due to the strict time lines in determination of presidential election petitions – admissibility of a further affidavit or additional evidence filed without leave of court in a presidential election petition – context, nature and extent of the affidavit - where the affidavit was lengthy and introduced new issues - whether such an affidavit would be admissible in the circumstances – whether the further affidavit in a presidential election petition would have been prejudicial to the respondents and therefore occasioned a miscarriage of justice - Supreme Court Act section 31 (d), Supreme Court (Presidential Election Petition) Rules, 2013 rule 9.

Brief facts The petitioner had filed a petition to which the respondents in the matter responded to by filing their respective replying affidavits. Subsequently, the petitioner filed what he referred to as the ‘petitioner’s affidavit in reply’ and served the respondents with the exception of a few who complained of lack of service. Several parties in the petition took issue with the filing of the subsequent affidavit and raised objections to it while others had no objections and even supported the reasons for filing of the further affidavit by the petitioner.

Issues

Whether the affidavit in reply that the petitioner had filed was admissible in court in a presidential election petition which had strict time constraints.

Whether the nature, context and extent of the new evidence in the affidavit that was intended to be produced by the petitioner in the presidential election petition could have been prejudicial to the respondents and therefore it amounted to a miscarriage of justice.

Whether the electoral laws had provided for a procedure for filing further affidavits or additional evidence which was available to the petitioner.

Held

The petitioner had used an unusual way of availing affidavits as annexures or evidence as there were various further affidavits filed through the affidavit in reply which were not independent affidavits filed to stand on their own as evidence in the particular proceedings. Such affidavits evaded payment of the filing fees and their probative value was questionable.

The operative term in section 31 (d) of the Supreme Court Act was the word “shall” which meant that it was mandatory to comply with any requirement within the prescribed time. The Supreme Court Act had provided for the manner in which the petition challenging the election of the President-Elect would be filed and prosecuted.

The Supreme Court Act had no provision relating to any further response. The principal pleadings in a presidential election under the Act were the petition and the response (just like a plaint and defence were the main pleadings in civil litigation or action). The next stage after pleadings had closed in a presidential election petition was the Pre–trial Conference which under rule 9 (1) of the Supreme Court (Presidential Election Petition) Rules, 2013 would be held 9 days after the filing of the petition.

It was not mandatory for the petitioner to annex an affidavit to the petition. However, a respondent was required to annex a replying affidavit to the response.

At the Pre–trial Conference, the Supreme Court, under the provisions of rule 10 (f) of the Supreme Court (Presidential Election Petition) Rules, could give directions in regard to the filing and service of any further affidavits or the giving of additional evidence.

The Supreme Court could only exercise its powers or discretion to allow further affidavits or additional evidence if it was specifically applied for, and it could allow or decline such an application. It was therefore not a matter of right and there was no provision for further affidavits in the Supreme Court Act.

The Supreme Court considered each case within the context of its peculiar circumstances and therefore, the exercise of the discretion of the court to apply the principle of substantial justice, rather than technicalities particularly in a petition relating to a presidential election which was a matter of great national and public interest ought to be done sparingly. The law and rules relating to the Constitution when implemented by the Supreme Court must be taken with seriousness and the appropriate solemnity. The rules and timelines established therein were made with special and unique considerations.

The period for the filing, prosecution and determination of a Presidential Election was only 14 days from the time of filing the petition which was a very tight, short and limited period. The background to the setting of the strict timelines ought to be known to most Kenyans as there was a purpose for it and the intention of the people of Kenya and of Parliament ought to be respected.

The parties in the petition had a duty to ensure that they complied with their respective timelines, and the court ought to adhere to its own. There must be a fair and level playing field so that no party or the court lost the time that they were entitled to and no extra burden should be imposed on any party or the court as a result of omissions or inadvertence which were foreseeable or could have been avoided.

If the further affidavit was small or limited so that the other party was able to respond to it, then the court would be considerate, taking into account all aspects of the matter. However, where the new material introduced was so substantial involving not only a further affidavit but massive additional evidence so as to make it difficult or impossible for the other party to respond effectively, the court would exercise caution and care in the exercise of its discretion to grant leave for the filing of the further affidavit and admission of additional evidence.

The affidavit contained 839 pages all inclusive and the further statements, in particular the intended additional evidence (exhibits), were so detailed that the remaining time before the trial was not reasonably adequate for the respondents to file any reasonable answer.

The additional facts and evidence tended to introduce new matters that would change the character and nature of the petition which could lead to the amendment of the petition and possibly give rise to significant new facts and allegations leading to a serious departure from the original case.

If the court had allowed the affidavits to remain on record, it would have been prejudicial to the respondents and it would have amounted to a miscarriage of justice.

Rule 31 (h) Supreme Court (Presidential Election Petition) Rules permitted the petitioner to apply for leave to be allowed to file further affidavits and additional evidence at the Pre-trial Conference. It would therefore have been prudent to file such an application before the date of the Pre–trial Conference so that it was before court, in time. However, in the instant case, the petitioner proceeded to file an affidavit in reply which had six additional and substantial affidavits, without any application for leave to do so.

The request for leave had been made at the end of the petitioner’s submissions in response to the objection and appeared to be almost reluctantly made. It was probably due to the pressure emanating from the kind of petition that was before the court and the time constraints. However, the court could not shoulder the burden of the consequences of such omissions and inadvertence.

Affidavit in reply by the petitioner, annexures and all other accompanying affidavits expunged from the court record.

Citations CasesNone referred toStatutesKenya Constitution of Kenya articles 86, 140, 156 - (Interpreted)

Supreme Court (Presidential Election Petition) Rules, 2013 (cap 9B Sub Leg) rules 9(1); 10(f) - (Interpreted)

Supreme Court Act, 2011 (cap 9B) sections 6, 7, 8, 31(d)(h) - (Interpreted)

AdvocatesNone mentioned

Ruling

1. Petition No 5 was filed by the petitioner, Raila Odinga on the March 16, 2013. The respondents in the petition are:1. Independent Electoral and Boundaries Commission;2. Ahmed Isaack Hassan;3. Uhuru Kenyatta; and4. William Samoei Ruto.

2. Upon service of the petition on them, the respondents filed their respective replying affidavits. The petitioner on the March 23, 2013 filed what he referred to as “petitioner’s affidavit in reply” and is sworn on the March 22, 2013. The petitioner served the respondents in Petition No 5. The only parties in respect of the other petitions who complained of lack of service were the petitioners in Petition No 3, through their counsel Mr Regeru.

3. As indicated earlier, the said affidavit in reply was filed on March 23, 2013 which was last Saturday. At the pre-trial conference on March 25, 2013, several counsel for various parties in the now consolidated petitions, took issue with the filing of the said affidavit and raised objections, while others had no objections and even supported the reasons for filing of the said affidavit of the petitioner.

4. Mr Ngatia for the third respondent, Mr Uhuru Kenyatta, stated that: The said affidavit was inordinately lengthy, running to 900 pages.

The new affidavit contained a schedule of alleged inflated votes in 58 new constituencies.

The affidavit introduced 122 new electoral areas with specific complaints. Mr Ngatia wondered whether the court would allow complaints amplified by new complaints out of time.

It was a scientific impossibility for the respondents to respond within a day, before the hearing, or even by the end of the week.

There was a right of fair trial for both the petitioner and the respondents.

The filing of the affidavit was prejudicial to the respondents, as it would occasion delay in the trial.

It was impossible to provide the material sought within time.

Parties must be held to their bargain as represented in their pleadings.

The petitioner filed the affidavit without the leave of the court, and as such there was no courtesy or decorum on the petitioner’s part.

5. Mr Ngatia asked the court to disallow the affidavit.

6. Mr Ahmed Nassir Abdullahi for the second respondent, Mr Ahmed Isaack Hassan, questioned the filing of the affidavit by the petitioner. He asked whether the case will stop “mutating” so that parties can proceed with the hearing. He referred to article 140 of theConstitution and the Supreme Court (Presidential Election Petition) Rules 2013 which provides the framework for responses. He added that: There was no provision to respond to the respondent’s response before the pre-trial conference.

There was a laid down procedure for the filing of responses.

The affidavit amounted to a flooding of evidence and was a flagrant abuse of the rules.

The petition has now changed significantly by the introduction of 152 new areas.

He inquired whether amendment of the petition can be done through an affidavit.

Finally, he concluded that the “original” petition can be prosecuted without the new affidavit.

7. The Independent Electoral and Boundaries Commission, through one of its counsels, Mr Mohamed Nyaoga, also opposed the filing of the petitioner’s affidavit in reply. He said that: There was no dispute that the petitioner and all parties had been served with forms 34 and 36.

The affidavit is filed at the eleventh hour, raising fresh issues through the back-door. This, he argued forms a different cause of action.

8. Mr Kigen for the fourth respondent, Mr William Ruto, submitted that: The petitioner had filed the affidavit without leave of the court.

There is no law which allows the petitioner to file the further affidavit.

The petitioner had manipulated the timelines. They now have more than 7 days yet they had been allowed enough time.

If the court allows the affidavit, it will be re-writing the governing law.

The petitioner has not given reasons for the filing of the affidavit.

The petitioner is presenting the petition in instalments.

9. Mr Regeru for the petitioner in Petition No 3 stated that: The first requirement had not been fulfilled, as he had not been served with the affidavit.

The Rules do not allow the further affidavit to be field.

The petitioner did not seek leave of the Supreme Court, as a matter of courtesy.

The time-table was being scuttled, and the court ought not to countenance this.

There was a brand new petition, in the shape of the affidavit.

There must be fairness to all the parties.

10. Mr Deya, on behalf of the fourth petitioner, accused the Independent Electoral and Boundaries Commission for the manner in which it had gone about discharging its duties by virtue of articles 86 and 156 of theConstitution. In effect, he blamed the Independent Electoral and Boundaries Commission for delays that must have necessitated the Petitioner filing the affidavit.

11. Mr Oraro, for the petitioner, stated and argued as follows: The petitioner had to go to court to obtain orders for production of various documents.

Under rule 10(f), there was the expectation of filing and serving any further affidavit, or the giving of additional evidence.

The petitioner chose the approach contemplated, ie to file the further affidavit and apply for leave subsequently.

There was no new pleading where data in form 34 had been supplied before.

They did not ask for particulars earlier, as the Independent Electoral and Boundaries Commission had in its response said that the manual tallying was accurate.

The affidavit is in respect of the application for disclosure of facts by one Mr Nesbitt.

The evidence is not additional.

The petition shows in one instance, that 11,000 votes had been deducted from the total.

12. Mr Ngatia and Mr Nyaoga made brief replies.

13. We have considered the objections raised by the respondents, in the now consolidated petition, and supported by the petitioner in Petition No 3, who is now petitioner No 2.

14. We have also considered the submissions in response. The net effect is that the respondents are asking the court to expunge the petitioner’s affidavit sworn on March 22, 2013 and filed on March 23, 2013.

15. We have carefully looked at the record and found that, in fact, there are still further affidavits placed on the record by the petitioner through the “affidavit in reply”.

16. We found the following further affidavits:1. Affidavit in reply sworn by Raila Odinga on March 22, 2013 and filed on March 23, 2013;2. Replying affidavit sworn by Oduor Ong’wen on March 22, 2013. It is not formally filed, but annexed as exhibit “RO – 1” in the affidavit in reply by the petitioner;3. Further affidavit sworn by Janet Ongera on March 22, 2013. It is not formally filed, but annexed as exhibit “RO – 2”.4. Replying affidavit sworn by Prof Lawrence Gumbe on March 22, 2013. It is not formally filed, but annexed as Exhibit “RO -3”5. Replying affidavit of Andrew Mwambogo Mwarua sworn on March 22, 2013. It is not formally, but annexed as exhibit – “RO- 4. ”.6. Affidavit of John Walubengo sworn on March 22, 2013. It is not formally filed, but annexed as “Exhibit - RO5”.7. Affidavit of Raj Pal Senna sworn on March 22, 2013. It is not formally filed, but annexed as exhibit – “RO- 6”.

17. The true position, therefore, is that there is not one “petitioner’s affidavit in reply”, but 7 affidavits in total. This aspect was not addressed by any of the parties.

18. This is an unusual way of availing affidavits as “annexures” or “evidence”; they are not independent affidavits filed to stand on their own, as evidence in the particular proceedings. We would understand if an affidavit is sworn in other proceedings in the past, is annexed as evidence of that affidavit. However, to have several affidavits sworn for the purpose of current proceedings and annexed as evidence is most unusual, if not strange, in our view.

19. Firstly, such affidavits evade payment of the filing fees and, secondly, their probative value come into question. Be that as it may, as the matter was never raised by the parties, we will say no more in respect of this anomaly.

20. It follows that the attacks on the affidavit in reply by the respondents are to be deemed to apply to each of the affidavits, distinctly and separately.

21. We now wish to turn to the relevant law regarding further affidavits and additional evidence, as provided in the Supreme Court Act and Supreme Court (Presidential Election Petition) Rules, 2013. Section 31 of the Act provides inter alia that:"without limiting the generality of article 163(8) of theConstitution, the rules made by the Supreme Court under that article may make provisions for …. (d) prescribing the time within which any requirement of the rules shall be complied with;…”

22. We note that the operative term in section 31(d) is the word “shall”. This suggests that it shall be mandatory to comply with any requirement within the prescribed time. The Supreme Court Act provides for the manner in which the petition challenging the election of the President-elect shall be filed and prosecuted.

23. Section 6 provides for the filing of the election petition-section 7 for the service of the petition; and section 8 deals with the response. There is no dispute that the petitioner and respondents complied with these provisions, and there is no need to dwell on them for the purposes of the objections herein.

24. Upon careful perusal of the Supreme Court Act, there is no provision therein relating to any further or other response. We emphasize the foregoing because it is our view that the principal pleadings in a presidential election under the act are the petition and the response/s (just like a plaint and defence are the main pleadings in civil litigation or action). The next clear stage after pleadings close in a presidential election petition is the pre– trial conference. The pre-trial conference under rule 9 (1) shall be held 9 days after the filing of the petition.

25. It should be noted that it is not mandatory for the petitioner to annex an affidavit to his/her petition. However, a respondent is required to annex a replying affidavit to the response. At the pre– trial conference, the court, under the provisions of rule 10(f), may:“give directions in regard to the filing and service of any further affidavits or the giving of additional evidence;”Upon careful consideration of the said rule and submissions by counsel, we are of the view that the court can only exercise its powers and/or discretion to allow further affidavits or additional evidence if it is specifically applied for, and may allow or refuse such an application. It is not a matter of right. As stated earlier, there is no provision for further affidavits in the Supreme Court Act, whatsoever.

26. The Supreme Court is a creature of theConstitution of Kenya, the supreme law of the land. The Supreme Court Act was enacted by Parliament on the basis of the provisions of theConstitution. The Supreme Court is given the powers to make the Supreme Court (Presidential Election Petition) Rules by the Act. So, everything flows from theConstitution. It may be argued that the Supreme Court ought to apply the principle of substantial justice, rather than technicalities, particularly in a petition relating to presidential election, which is a matter of great national interest and public importance. However, each case must be considered within the context of its peculiar circumstances. Also, the exercise of such discretion must be made sparingly, as the law and rules relating to theConstitution, implemented by the Supreme Court, must be taken with seriousness and the appropriate solemnity. The Rules and time – lines established are made with special and unique considerations.

27. The period for the filing, prosecution and determination of a presidential election is only 14 days from the time the results are declared. This is a very tight, short and limited period. The background to the setting of the strict time – lines must be known to most Kenyans. There was a purpose to this and the intention of the people of Kenya and of Parliament must be respected.

28. The parties have a duty to ensure they comply with their respective time – lines, and the court must adhere to its own. There must be a fair and level playing field so that no party or the court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party, or the court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided.

29. The other issue the court must consider when exercising its discretion to allow a further affidavit is the nature, context and extent of the new material intended to be produced and relied upon. If it is small or limited so that the other party is able to respond to it, then the court ought to be considerate, taking into account all aspects of the matter. However, if the new material is so substantial involving not only a further affidavit but massive additional evidence, so as to make it difficult or impossible for the other party to respond effectively, the court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence.

30. In the present case, the affected respondents have submitted that they are unable to respond within next remaining period (which is only today), before the hearing starts.

31. We have gone through the affidavits and exhibits and find that the bundle contains 839 pages all inclusive. We find that the further statements, and in particular the intended additional evidence (exhibits), are so detailed that the remaining time before the trial is not reasonably adequate for the respondents to file any reasonable answer.

32. Secondly, from what has been deponed by Mr Ong’wen and Mrs Ongera in their respective affidavits, the additional facts and evidence, in our view, tend to introduce such new matters as would change the character and nature of the petition. This may lead to amendment/s of the petition thereby possibly giving rise to significant new facts and/or allegations leading to a serious departure from the original case.

33. We hold that if we allow the 7 affidavits to remain on record, the same will be prejudicial to the respondents. This will amount to a miscarriage of justice, and we cannot allow it in the circumstances.

34. As indicated earlier, under rule 31(h), the petitioner could have applied for leave to be allowed to file further affidavits and/or additional evidence at the pre – trial conference. Of course it would be prudent for one to file such an application before the date of the pre-trial conference, so that it is before the court, in time. However, in this case, the petitioner proceeded to file an affidavit in reply bearing on its back six substantial affidavits, without any application for leave to do so!

35. Senior counsel, Mr Oraro submitted, to our understanding, that it was the intention to ask for such leave at the pre – trial conference. We understand that he would have made such request orally. The request for leave was made at the tail-end of the petitioner’s submissions in response to the objection. It was almost reluctantly made, if we may say so. We however give the benefit of the doubt to counsel on the allegations or suggestions of lack of courtesy or decorum. From what we know of the senior counsel, he is the last one to show disrespect to any court of whatever level. We only deem that it was a judgment or decision which was not founded on foresight, or was taken due to pressures emanating from the kind of petition that was before the court, and the time constraints. But the respondents and the court should not shoulder the burden of the consequences of such omissions or inadvertences.

36. As a result of the forgoing, we hereby expunge from the court records the petitioner’s affidavit sworn on March 22, 2013 together with all its annexures, which include the other affidavits. The petitioner shall bear the costs of the objection proceedings relating to the affidavits in reply.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 26 THMARCH 2013. ...................................WM MUTUNGACHIEF JUSTICE & PRESIDENT JUSTICE OF THE SUPREME COURT...................................PK TUNOIJUSTICE OF THE SUPREME COURT...................................MK IBRAHIMJUSTICE OF THE SUPREME COURT...................................JB OJWANGJUSTICE OF THE SUPREME COURT...................................SC WANJALAJUSTICE OF THE SUPREME COURT...................................NS NDUNGUJUSTICE OF THE SUPREME COURTSUPREME COURT OF KENYAORDERAs a result of an accidental slip or error in our ruling dated March 26, 2013, we said at page 9 that:-The period for filing of a presidential election is only 14 days from the time the results are declared.In exercise of our inherent jurisdiction, we hereby order the amendment of the said ruling by substituting the aforesaid underlined words with the following words:-. . . of filing of the petition.”*Orders accordinglyDATED AND SIGNED AT NAIROBI THIS 3RD APRIL 2013. .................................WM MUTUNGACHIEF JUSTICE & PRESIDENT JUSTICE OF THE SUPREME COURT..................................PK TUNOI..................................MK IBRAHIMJUSTICE OF THE SUPREME COURT..................................J.B. OJWANGJUSTICE OF THE SUPREME COURTT..................................SC WANJALAJUSTICE OF THE SUPREME COURT..................................NS NDUNGUJUSTICE OF THE SUPREME COURTI certify this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA