Odongo Victor Robert v Independent Electoral & Boundaries Commission, Returning Officer Kagan Ward Ezekiel Juma Otieno & Onyango Philemon [2017] KEMC 102 (KLR)
- Citation
- [2017] KEMC 102 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Magistrate's Court
- Posture
- Election Petition / Interlocutory Ruling on Admissibility of Affidavit Evidence
- Case number
- Election Petition 1 of 2017
- Language
- English
More details
- Court
- Magistrate's Court
- Posture
- Election Petition / Interlocutory Ruling on Admissibility of Affidavit Evidence
- Case number
- Election Petition 1 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the petitioner, not being the deponent of the Chief agent's affidavit, cannot take the court through the documents annexed to that affidavit. Only the Chief agent, as the deponent, is the proper person to testify regarding the contents and annexures of his own affidavit. Allowing the petitioner to do so would be procedurally improper and would waste the court's time, as the Chief agent will have the opportunity to testify on the same affidavit. The matter was directed to proceed with this clarification.
Court disposition
Objection upheld; petitioner barred from taking court through documents annexed to another's affidavit. Matter to proceed.
Orders
- The petitioner may only refer to the document attached in the affidavit of the Chief agent but may not take the court through it.
- The Chief agent is the proper person to testify regarding the affidavit and its annexures.
- Matter to proceed.
02
Material facts
Parties
Odongo Victor Robert
ApplicantIndependent Electoral & Boundaries Commission
RespondentEzekiel Juma Otieno
RespondentOnyango Philemon
Respondent03
Procedural history
Posture
Election Petition / Interlocutory Ruling on Admissibility of Affidavit Evidence
04
Questions and positions
Legal issues
- 01
Whether the petitioner can refer to and take the court through documents attached to an affidavit sworn by another person.
- 02
Who is the proper person to testify regarding the contents of an affidavit and its annexures in an election petition.
Party arguments
- Applicant
- The petitioner sought to refer to documents attached to the affidavit of the Chief agent, presumably to support his case during testimony.
- Respondent
- Objection was raised that the petitioner cannot take the court through documents annexed to an affidavit he did not swear, and that only the deponent (Chief agent) should testify to those documents.
05
Court’s reasoning
Legal principles
- 01
Kenyan law of evidence; general principles on affidavit evidence.
Only the deponent of an affidavit is competent to testify to its contents and annexures; another party cannot introduce or explain such documents in evidence.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the petitioner, not being the deponent of the Chief agent's affidavit, cannot take the court through the documents annexed to that affidavit. Only the Chief agent, as the deponent, is the proper person to testify regarding the contents and annexures of his own affidavit. Allowing the petitioner to do so would be procedurally improper and would waste the court's time, as the Chief agent will have the opportunity to testify on the same affidavit. The matter was directed to proceed with this clarification.
Court disposition
Objection upheld; petitioner barred from taking court through documents annexed to another's affidavit. Matter to proceed.
- The petitioner may only refer to the document attached in the affidavit of the Chief agent but may not take the court through it.
- The Chief agent is the proper person to testify regarding the affidavit and its annexures.
- Matter to proceed.
Source and reliance status
Magistrate's Court
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Judgment reading view
Judgment text
The complete available source text.
Magistrate's Court
Judgment
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT
AT HOMA BAY
ELECTION PETITION NO: 1 OF 20-17
ODONGO VICTOR ROBERT..........................PTITIONER
VERSUS
INDEPENDENT ELECTORAL & BOUNDARIES
COMMISSION.......................................1ST RESPONDENT
THE RETURNING OFFICER KAGAN WARD
EZEKIEL JUMA OTIENO...............2ND RESPONDENT
ONYANGO PHILEMON....................3RD RESPONDENT
RULING:
My directions are that the witness (petitioner) can only refer to the document attached in the affidavit of the Chief agent. He cannot take us through because he did not swear the affidavit. The Chief agent will be the correct person to take us through the documents as affidavit. Allowing the petitioner to take us through the document will waste the Courts time as the agent will testify on the same affidavit. Matter to proceed.
T. OBUTU SPM
1/11/2017
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