[2017] KEHC 2318 (KLR)

8REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT LODWAR

ELECTION PETITION NO. 2 OF 2017

PAUL EKUWON NABUIN.............................................................PETITIONER

VERSUS

CHRISTOPHER DOYE NAKULEO ...................................1ST RESPONDENT

NGEITELEJIO EKALALE DANSON.................................2ND RESPONDENT

I.E.B.C ................................................................................3RD RESPONDENT

RULING

This is an application by the petitioner Paul Ekuwon Nabuin dated 18/10/2017 brought under Articles 3 and 35(b) of the Constitution of Kenya, Section 4 (1) of the Access to information Act, Section 27 of the Independent Electoral and Boundaries Commission Act, Section 80 (4) (a) and 82 of the Elections Act, 2011, Rules 30 and 31of the Elections (parliamentary and County) Petition Rules, 2017seeking orders

1. That an order of this honourable court be issued compelling the 2nd and 3rd Respondents to produce and avail before court all KIEMS kit devices, voter registers, polling station diaries, ballot boxes and ballot papers for the Turkana North Constituency member of National Assembly election held on 8th August, 2017.

2. Spent

3. Spent

4. Spent

5. Spent

6. Spent

7. That this honourable court grants leave to the Petitioner to file his further Affidavit as well as the Affidavit of Abdifatah Kapua Ebei, Jalton Lopeto Lomekuya and further affidavits of Peter Nangolol Edapal, Merilem A Geoffrey and Noor Abubakar Ahmed.

8. That the further affidavits of the Petitioner, Abdifatah Kapua Ebei Jalton Lopeto Lomekuya, Peter Nangolol Edapal, Merilem A Geoffrey and Noor Abubakar Ahmed annexed hereto be admitted to the record and the same be deemed as properly filed and served.

The application is premised in the grounds by the applicant that:

1. There is further need for the following further affidavits to be admitted on record albeit out of time and for the given reasons;

a.The petitioner himself to shed light on the various inconsistencies surrounding the Forms 35As that have been produced by the 2nd and 3rd Respondents and to produce in evidence the 1st Respondent’s Affidavit sworn in Lodwar Election Petition No.1 of 2017 and which affidavit contradicts all of the 1st Respondent’s averments as filed in his supporting affidavit to this petition.

b.Peter Nangolol Edapal to supply further particulars of his witness account and to produce a voice recording he recorded of a conversation between him and one Festus Lowayapua, a jubilee campaigner.

c.Jalton Lopeto Lomekuya to produce in evidence two (2) voice recordings he recorded of Chief Nawoto.

d.Merilem A Geoffrey to strike out paragraph sixteen (16) of his witness statement.

e.Noor Abubakar Ahmed to correct the nature of his posting, and role during the 8th August, 2017 election since he was the 2nd and 3rd Respondent’s clerk but his initial affidavit had erroneously listed him as being an agent.

f.Abdifatah Kapua Ebei to give an account of what transpired in Kaaleng/Kaikor ward.

2. The petitioner does not intend on expanding on the scope of the substantive grounds and particulars of electoral malpractices as contained in Petition but rather merely intends to illuminate the said grounds to enable this Honourable Court appreciate the gravity of the Petition herein.

The application is supported by the supporting affidavit of Paul Ekwam Naibua sworn on 18th October, 2017 who reiterated the grounds of the application.

The application is opposed. Hon.Christopher Doye Nakuleo filed a replying affidavit sworn on 30th October, 2017 in which he depones that:

The orders sought will mean that the Petitioner has by design been given an extension of time to present the petition beyond the time permitted by law. It would mean the applicant gets time extended without even having to apply.

By consent both parties filed respective written submissions in respect to prayer 7 and 8 of the application. Mr. Nyachoti for the applicant submitted that the petitioner seeks leave to file affidavits to respond to the affidavit of the 1st Respondent in an affidavit filed in Lodwar High Court Petition No.1 of 2017 in which he depones that there were glaring election malpractice during the elections held in August, 2017. The second reason is to enable to petition further particulars of the discrepancies in form35A which discrepancies only came to light after the forms were produced by the 2nd and 3rd Respondent in court and that the petitioner did not have access to them before then. He also submits

It is also necessary for the further affidavits of the following persons to be admitted to the record; Peter Nangolol Edapal to supply further particulars of his witness account and to produce a voice recording he recorded of a conversation between him and one Festus Lowayapua, a jubilee campaigners, Jalton Lopeto Lomekuya to produce in evidence two (2) voice recordings he recorded of Chief Nawoto and which are relevant to this petition, Merilem A. Geofrey to strike out paragraph sixteen (16) of his witness statement which was so placed out of an oversight, Noor Abubakar Ahmed to correct the nature of his posting and role during the 8th August, 2017 election since he was the 2nd and 3rd Respondent’s clerk but his initial affidavit had erroneously listed him as being an agent and Abdifatah Kapua Ebeito give an account of what transpired in Kaaleng/Kikor ward. The said affidavits do not alter the grounds in the petition at all.

Mr. Katwa for the Respondent in response submitted that the application should not be allowed because the new evidence and affidavits can only be allowed if an application for the same is made within 28 days of the filing of the petition and that this application ought to have been filed by 3rd October, 2017. From the application and submissions the issue for determination is whether this court should allow the filling of further affidavit by the petition and other affidavits by witnesses Abdifatah Kapua Ebei; Jalton Lopeto Lomekuya, Peter Maligolol Edapul, Merilem A Geofrey and Noor Abuakar Ahmed.

“The election court has jurisdiction during the pre-trial conferencing and interlocutory application under section 15 rule 1 of the Parliamentary and County (Election Petition under section15(i) Rule II give directions as to the filling and serving of any further affidavits or the giving of additional evidence”.

An election court therefore can allow an application for filing of further affidavits or additional evidence if the application satisfies three grounds (1) it does not alter the sub-stratum of the petition and (2) it does not prejudice the parties and (3) it does not undermine the constitutional imperative of timely resolution of electoral disputes.

In this application, the petitioner has already filed an affidavit in support of the petition. The application is to file a further affidavit which is annexed which will deal with issues which have been brought out by proper scrutiny of form 35A’s supplied by the 2nd and 3rd Respondent. The issue of discrepancies in these forms 35A is a ground of the petition. The further affidavit will not affect the sub-stratum of the petition.

Peter Nangoloi Edapul is to supply further particulars of a voice recording of a conversation between him and one Festus Lowayapua, John Lopeto to produce a voice recording he recorded of Chief Nawotu, Merilem A Geoffrey is to strike out paragraph 16 of his witness statement. Noor Abubakar Ahmed to correct the nature of his posting and role to indicate he was a clerk and not as erroneously stated that he was agent and Abdifatah Kapua Ebei to give an account of what transpired at Kaalung/Kasikor ward.

All the above affidavits deal with and only support the grounds of the petition filed. They do not in my view expand the scope of the petition nor do they have the effect of amending the election petition for them to have been required to have been made within 28 days of declaration of results. In my view the affidavits are aimed at expounding on the grounds of the petition. No prejudice in my view will be suffered by any of the parties or the process of the court and the application was brought promptly and will not affect the set hearing of this petition.

I therefore allow the application in terms of prayer 7 and 8. I direct that the other parties have leave to file further affidavit if need be in respect of the admitted affidavit within 5 days. As prayer No.1 is not opposed as the Respondent IEBC have not filed grounds of opposition or replying affidavit, the same is granted as prayed.

Dated and signed at Lodwar this 14th day of November, 2017

S N RIECHI

JUDGE