[2017] KEMC 20 (KLR)
The court found that the petitioner failed to file the application for leave to introduce further affidavit and additional evidence before the pre-trial conference, as required by the Election Petitions Rules. The application was deemed an afterthought, and no sufficient reason was provided for the delay. Allowing...
Source-derived case information.
- Citation
- [2017] KEMC 20 (KLR)
- Parties
- Applicant: Shitandi Edith Were; Respondent: Henry Majimbo Okumu; Respondent: Gregory Odhiambo Ouko; Respondent: I.E.B.C.
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2017
- Procedural Posture
- Election Petition / Ruling on Interlocutory Application for Leave to File Further Affidavit and Additional Evidence
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Applications, Admission of Additional Evidence, Further Affidavits, Pretrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Shitandi Edith Were
Applicant
Henry Majimbo Okumu
Respondent
Gregory Odhiambo Ouko
Respondent
I.E.B.C.
Respondent
Procedural Posture
Election Petition / Ruling on Interlocutory Application for Leave to File Further Affidavit and Additional Evidence
Legal Issues
- 1 Whether the petitioner should be granted leave to file a further affidavit and additional evidence after the pre-trial conference.
- 2 Whether the application for leave is prejudicial to the respondents or an afterthought.
Ratio Decidendi
The court found that the petitioner failed to file the application for leave to introduce further affidavit and additional evidence before the pre-trial conference, as required by the Election Petitions Rules. The application was deemed an afterthought, and no sufficient reason was provided for the delay. Allowing the application would prejudice the respondents, who were ready to proceed, and would undermine the need for expeditious determination of election petitions within the statutory six-month period. The court therefore upheld the respondents' objection and disallowed the petitioner's application.
Court Disposition
application dismissed
Orders
- The petitioner's application for leave to file a further affidavit and additional evidence is disallowed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE'S COURT AT BUNGOMA
ELECTION PETITION NO.1 OF 2017
SHITANDI EDITH WERE............................................................................PETITIONER
VERSUS
1. HENRY MAJIMBO OKUMU.....................................................1ST RESPONDENT
2. GREGORY ODHIAMBO OUKO................................................2ND RESPONDENT
3. I.E.B.C........................................................................................3RD RESPONDENT
RULING
The petitioner has sought leave to put in a further affidavit and additional evidence in respect to paragraph 20-23 of the petitioner's supporting affidavit before we proceed to hear the petition submitting that the affidavit will not alter the petition or introduce new evidence or prejudice the Respondents
The 1st Respondent opposes the application on grounds that the 1st Respondent was prepared to proceed today, that it is an afterthought, that the 1st respondent will suffer prejudice, that the application is a fishing expedition and lastly that allowing the application would consume more time as the respondent would need more time to reply.
The 2nd and 3rd Respondents also opposed the application stating that it was not made in good faith as the petitioner had the information before the pre-trial directions. The Respondents seek thrown away costs of Kshs.20,000/- should the application be granted.
In answer to the objections, the petitioner stated that it is the petitioner's wish to have the petition heard and determined expeditiously and if allowed, they would do so in 2 or 3 hours. The evidence sought to be provided is not prejudicial but will assist the court to reach a just decision, the petitioner submitted. Respecting the thrown away costs of Kshs.20,000/- the petitioner considers that unreasonable and offers thrown away costs of Kshs.5000/- to the Respondents should the application be allowed.
I have considered the application, the objections by the Respondents and the petitioner's answer to the objection. It is quite clear order 15(1) (h) of the Election Petitions Rules 2017, that the election court has jurisdiction to allow the filing of further affidavits and admit additional evidence but such an application should be brought before the commencement of the hearing. Rule 15(2) of the Elections (Parliamentary and County elections) petitions rules 2017 in no uncertain terms states:
“An election court shall not allow anyinterlocutory application to be made onconclusion of the pre trial conference,if the interlocutory application could have, by its very nature, been brought beforethe commencement of the hearing of the petition”.
The petitioner had not filed the application before the pretrial on 6/10/17 and did not make the application then. I would agree with the 1st respondent that the application is an afterthought. The applicant does not state why the application was not made before. I agree it is prejudicial to the respondents who are ready to proceed. It will not do to claim the additional evidence will help the court reach a just decision. Time is of essence in the matter as the petition has to be concluded within 6 months. I therefore find no merit in the petitioner's application, uphold the respondent's objection and thereby disallow the petition's application.
J.Kingori CM
11. 10. 17