[2013] KEHC 4011 (KLR)
The court confirmed compliance with statutory timelines and set out the issues for determination, including whether scrutiny and recount of votes should be ordered, the validity of the 1st Respondent's election, and costs. The court allowed the petitioner's application to admit additional evidence and set timelines...
Source-derived case information.
- Citation
- [2013] KEHC 4011 (KLR)
- Parties
- Applicant: Phillip Osore Ogutu; Respondent: Michael Onyura Aringo; Respondent: Independent Electoral & Boundary Commission (IEBC); Respondent: Returning Officer
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Petition 1 of 2013
- Procedural Posture
- Election Petition / Pre Trial Conference Directions
- Outcome
- Pre-trial directions issued; interlocutory application by petitioner allowed; timelines and procedures set for further applications, evidence, and witness examination.
- Legal Topics
- Vote Scrutiny, Election Results Challenge, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phillip Osore Ogutu
Applicant
Michael Onyura Aringo
Respondent
Independent Electoral & Boundary Commission (IEBC)
Respondent
Returning Officer
Respondent
Procedural Posture
Election Petition / Pre Trial Conference Directions
Legal Issues
- 1 Whether scrutiny and recount of votes should be ordered for the polling stations listed in the petition.
- 2 Whether the 1st Respondent was validly declared as elected member of the National Assembly for Butula Constituency.
- 3 Who should bear the costs of the petition.
Ratio Decidendi
The court confirmed compliance with statutory timelines and set out the issues for determination, including whether scrutiny and recount of votes should be ordered, the validity of the 1st Respondent's election, and costs. The court allowed the petitioner's application to admit additional evidence and set timelines for filing further affidavits and applications. Directions were given for the production and handling of evidence, including election materials, and the conduct of witness examination. The court emphasized adherence to statutory and procedural requirements, ensuring a fair and orderly process for the hearing of the election petition.
Court Disposition
Pre-trial directions issued; interlocutory application by petitioner allowed; timelines and procedures set for further applications, evidence, and witness examination.
Orders
- Petitioner's application of 29/04/2013 allowed in entirety.
- Statement of Esther Engefu Musundi to be converted into an affidavit.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
High Court at Busia
Petition 1 of 2013 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
PHILLIP OSORE OGUTU.......................................................................................................PETITIONER
VERSUS
1. MICHAEL ONYURA ARINGO.............................................................................1ST RESPONDENT
2. INDEPENDENT ELECTORIAL & BOUNDARY COMMISSIONS(IEBC).......2ND RESPONDENT
3. RETURNING OFFICER ......................................................................................3RD RESPONDENT
2. 5.2013
Coram:F. Tuiyott J.
Kadenyi – court clerk
Kasamani for Petitioner
K’opot for the 1st Respondent
Akide for the 2nd and 3rd Respondents
DIRECTIONS AT PRE-TRIAL CONFERENCE
1)COMPLIANCE WITH STATUTORY TIMELINES
1. 1.It was confirmed that all parties had complied with Statutory timelines in respect to filing and service of the Petition and the Responses.
2)ISSUES FOR DETERMINATION
2. 1.All averments of facts in all affidavits are challenged and required to be proved.
2. 2.Agreed issues for the Court’s determination are:-
a)Whether there should be scrutiny and recount of the votes in the polling stations listed in paragraph 19 of the Petition.
b)Whether there should be a declaration that the 1st Respondent was not validly declared as elected member of the National Assembly for Butula Constituency.
c)Who should pay for costs.
3)INTERLOCUTORY APPLICATIONS
3. 1The Petitioners application of 29/04/2013 is hereby allowed in its entirety.
3. 2.The statement of ESTHER ENGEFU MUSUNDI made on 29th April 2013 shall be converted into an affidavit.
3. 3.The Respondents are granted leave to file Affidavits in reply to the Petitioners additional evidence. The Affidavits to be filed on or before 8th May 2013.
3. 4The Petitioner is granted leave to file an application justifying scrutiny, that application shall be filed and served on or before 8th May 2013.
3. 5.The 1st Respondent is granted leave to file an application seeking to strike out some portions of Affidavits filed in support of the Petitioners cause, that application shall be filed and served on or before 8th May 2013.
3. 6.Responses, if any, to both applications above shall be filed and served on or before 13th May 2013.
3. 7Both applications shall be heard on 15th May 2013.
4)EVIDENCE
4. 1.The minutes annexed to the Petitioner’s Affidavit of 29th April 2013 and marked P00 “2” shall be produced without calling its maker.
4. 2.The photographs, “lessos” and the Petitioners protest letter to IEBC, which are part of the motion, shall be produced in accordance with the provisions of The Evidence Act (Chapter 80 Laws of Kenya).
4. 3.The video recording referred to in paragraph 12 of the Petitioner’s Affidavit of 29th April 2013 shall be shown to the Respondents Counsel on or before 8th May 2013. In the absence of an agreement as to its production then the decision shall be left to Court.
4. 4.The production of the voter register and Forms 35 shall await the Courts decision on the Petitioner’s application for scrutiny and recount.
4. 5The 2nd and 3rd Respondents confirm that they shall, on or before 13th May 2013, deliver to the Deputy Registrar of the Court the ballot boxes and results in respect to the election.
5)WITNESSES
5. 1.It is agreed that the Affidavits of all witnesses shall form their evidence-in-chief whereupon they shall be cross-examined and re-examined.
5. 2The Petitioner shall call 10 witnesses (whole Affidavits are already filed), this includes the Petitioner himself.
5. 3 The examination-in-chief, cross-examination and re-examination of the Petitioner’s witnesses shall be limited to2 days.
5. 4The 1st Respondent shall call 5 witnesses including the 1st Respondent himself. The other 4 witnesses are:
1) Mary Makokha
2) Moses Osodo Onyango
3) Blasto S. Ngono
4) Pamphil Oduor Opoya
The Affidavit of these four witnesses shall be filed and servedin compliance with direction 3. 3 above.
5. 5.The 2nd and 3rd Respondents shall call one witness only, Joseph Sigei.
5. 6.The examination-in-chief, cross-examination and re-examination of the Respondent’s witnesses shall be limited to 2 days.
6)SUBMISSIONS
An order on submissions shall be made by the Court at the close of taking of all evidence.
DATED AND ISSUED AT BUSIA THIS 2ND DAY OF MAY 2013.
F. TUIYOTT
J U D G E