Case ID:53302

Abdinasir Yasin Ahmed & 2 others v Ahmed Ibrahim Abass & 2 others [2013] eKLR

Case Metadata

Case Number:

Petition 9 of 2013

Parties:

Abdinasir Yasin Ahmed, Ubah Abdullahi Sanei & Yusuf Suleiman Ahmed v Ahmed Ibrahim Abass, Independent Electoral and Boundaries Commission & George Chege

Date Delivered:

19 Jul 2013

Case Class:

Civil

Court:

High Court at Garissa

Case Action:

Ruling

Judge(s):

Alfred Mabeya

Citation:

Abdinasir Yasin Ahmed & 2 others v Ahmed Ibrahim Abass & 2 others [2013] eKLR

Court Division:

Constitutional and Judicial Review

County:

Garissa

Case Summary:

When can an election petition witness testify without having sworn and filed a witness affidavit?

Abdinasir Yasin Ahmed & 2 others v Independent Electoral & Boundaries Commission & 2 others

Petition No 9 of 2013

High Court of Kenya at Garissa

Heard in the High Court of Kenya at Nairobi

Alfred Mabeya, J.

July 19, 2013

Reported by Beryl A. Ikamari

Brief facts

At the pre-trial conference, the Independent Electoral & Boundaries Commission (IEBC) reserved the right to call 2 police officers as witnesses. However, the IEBC did not file affidavits by witnesses sworn by those police officers. Several weeks later, in making its application to have Mr. Mohammed Bedel, a police officer, testify without having sworn and filed a witness affidavit, the IEBC explained that a basis had been laid for Mr. Mohammed Bedel testimony in an affidavit sworn by another witness. The IEBC was applying to have Mr. Mohammed Bedel give oral testimony in court as its witness (R1W16.)

Issue: -

What nature of reasons would constitute sufficient reasons for the court to allow a witness in an election petition to give an oral testimony without having filed and sworn a witness affidavit?

Electoral Law

-affidavit by witness-giving of oral testimony in an election petition without having sworn and filed a witness affidavit -the nature of reasons that would constitute sufficient reason for the court to allow a witness to give oral testimony in an election petition without having filed and sworn a witness affidavit -Election (Parliamentary and County Elections) Petition Rules, 2013; rules 4, 15(4), 15(5) & 15(6).

Held

The general rule reflected in rule 12 & 15 of the Election (Parliamentary and County Elections) Petition Rules, 2013 was that a witness would not be allowed to testify in an election petition unless that witness had filed an affidavit.

The purpose of the rule was to ensure that parties were given adequate notice of the nature of evidence they would face at the trial and also to make it possible to expedite the hearing of election petitions by allowing the witness affidavit to be admitted as evidence in chief. This would assist the courts to fulfill the legal requirement to the effect that election petitions must be heard within 6 months of the declaration of election results.

The provision of sufficient reasons would allow a witness to testify without having filed a witness affidavit, as an exception to the rule that witnesses testifying in an election petition must have sworn and filed a witness affidavit before testifying.

While allowing a witness to give oral testimony might delay the trial as such a witness would have to give evidence in chief, to be cross-examined and then re-examined, in the circumstances, it would not amount to a trial by ambush as the other parties had notice that the Independent Electoral & Boundaries Commission had reserved the right to call 2 police officers to testify at the pre-trial stage.

The overriding objective in election petitions, under rule 4 of the Election (Parliamentary and County Elections) Petition Rules, 2013, was to deliver justice. Taking into consideration that Mr. Mohammed Bedel, the police officer, was a public servant and that affidavits from public servants on matters touching on their official duties required bureaucratic clearance which could sometimes takes quite a long time to secure, it would be in the interests of justice to allow him to testify without having filed the requisite affidavit.

The interests of justice would demand that the court admits as much evidence as is legally permissible if that would enable the court to do justice to the electorate.

Application allowed.

History Advocates:

Neither party represented

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

HEARD IN THE HIGH COURT OF KENYA AT NAIROBI

PETITION NO.9 OF 2013

ABDINASIR YASIN AHMED ...................................................... 1

ST

PETITIONER

UBAH ABDULLAHI SANEI.........................................................2

ND

PETITIONER

YUSUF SULEIMAN AHMED .......................................................3

RD

PETITIONER

VERSUS

AHMED IBRAHIM ABASS.........................................................1

ST

RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ......................................................2

ND

RESPONDENT

GEORGE CHEGE ....................................................................3

RD

RESPONDENT

R U L I N G

Rule 15 Sub Rules (4), (5) and (6) of the Election (Parliamentary and County Elections) Petition Rules, 2013, (hereinafter “the Elections Petition Rules”) provides:-

“

15. (4) Subject to Sub-rule (5),

a witness shall not give evidence for the Respondent unless an affidavit sworn by the witness,

setting out the substance of the evidence, in sufficient copies for the use of the court and the Petitioner, is filed with the response as required by this rule.

(5) A witness for the Respondent who fails to file an affidavit under Sub-rule (2) or (4) shall not be permitted to give evidence without the leave of the court.

(6) The Court shall not grant leave under Sub Rule (5) unless sufficient reason is given for the failure to file and Affidavit” (Emphasis added)

On 3

rd

June, 2013, pretrials were undertaken in this matter. Part of the pretrial directions given read.

“(3) (b) The 1

st

Respondent reserved the right to call two police officers as witnesses at the appropriate time.........”

Number of witnesses

Petitioner – 10 witnesses

1

st

Respondent – 16 witnesses

2

nd

and 3

rd

Respondent – 10 witnesses

Total - 36 witnesses

There will be no testimony on evidence in chief which is already on record. The witness shall attend for cross examination.”

On 16

th

July, 2013, after the 1

st

Respondent had called his 15

th

witness, Mr. Kanjama, learned Counsel for the 3

rd

Respondent made an application under Rule 12 (5) (sic) of the Election Petition Rules to be granted leave to call one Mohamed Bedel an Administration Police Officer to attend and testify although his Affidavit witness had not been filed. Mr. Kanjama submitted that since his client had given notice at the pretrial conference that he will be calling two (2) police officers and that the said officers had already had their statements produced in these proceedings through the Further Affidavit of Ahmed Ibrahim Abass, and for the reason that Mr. Mohamed Bedel is an Administration police officer and therefore a public servant, sufficient reason had been given for the court to exercise its jurisdiction under Rule 12 (5) [Counsel meant Rule 15(5)] of the Election Petition Rules. Counsel observed that the said Rule cannot be read in isolation. It has to be read in conjunction with Rule 4 of the Election Petition Rules. Counsel therefore urged the court to allow Mr. Mohammed Bedel to testify without him having filed any Affidavit.

Mr. Anzalla, learned Counsel for the Petitioner opposed the application. He submitted that although the 1

st

Respondent had, at the pre-trial conference, reserved the right to call two (2) police officers, he had not filed the Affidavits of the said police officers as at the time the application was being made although substantial time had lapsed. In his opinion, the letter relied on by the 1

st

Respondent as giving notice of the intention to call the police officer without having filed his Affidavit could not be said to be due notice. In his view therefore, no sufficient reason had been given to warrant the grant of the leave sought.

Having carefully considered the respective Counsel’s submissions and the law, my view is as following:- Rules 12 and 15 of the Elections Petition Rules are very categorical. No witness of either party to an Election Petition can be allowed to testify at the trial unless he has already caused to be filed his affidavit. The purpose of this rule in my view is to avoid litigation by ambush. A party in an Election Petition must be put on notice or must know the nature of the case and evidence he is to face at the trial. The other purpose for the rule is to lessen the time of trial by having the Affidavit witness to be admitted as evidence in chief and to have the witnesses only cross-examined on their Affidavits and re-examined. This is in line with the new constitutional and legal requirement that election petitions

MUST

be determined within six (6) months of the declaration of the results. It is a sound requirement.

The only exception to the foregoing rule is where there is sufficient reason when a court can allow a witness who has not filed an Affidavit to attend and testify. Has the 1

st

Respondent given any sufficient reason for the application he is making? I agree with Mr. Anzalla that although at the pre-trial conference the 1

st

Respondent had reserved the right to call two (2) police officers as their witnesses, their or Mohammed Bedel’s Affidavit has not been field over six (6) weeks later. Allowing that witness to attend and testify might delay the trial as he will have to give his evidence in chief then be cross examined and re examined. That probably might defeat the purpose of Rule 15.

Be that as it may, Mr. Kanjama urged the Court to read that rule with Rule 4 of the Election Petition Rules. I have considered the overriding objective of the rules under Rule 4. It is to deliver justice. I have also considered that as early as 3

rd

June, 2013, the 1

st

Respondent had indicated of his intention to call two police officers as witnesses. The court is aware that it gave very strict timelines for filing of Affidavits and discovery. The court is also aware that getting Affidavits from public servants on matters touching on their official duties requires bureaucratic clearance which sometimes takes quite a long time to secure. Mr. Kanjama alluded to the appertenant delays that dissuaded his client from seeking to have those Affidavits filed. I am also alive to the fact that the statement of the said Mohamed N. Bedel dated 22/5/2013 was produced in evidence through the Further Affidavit of the 1

st

Respondent filed in Court of 3

rd

June, 2013. Indeed, when the 1

st

Respondent was being cross examined by Mr. Issa, he was questioned, amongst others, about that statement.

To my mind therefore, the Petitioners have at all times since 3

rd

June, 2013 been on notice as to the likelihood of Mr. Mohamed Bedel attending and testifying. They have also had notice of the nature of the evidence he intends to testify on through his aforesaid statement. That being the case, it cannot be said that the Petitioners are being ambushed or they will suffer any prejudice. However, as to the spirit of expeditious disposition and/or determination of the petition, I doubt if it will be achieved if the 1

st

Respondent’s request is acceded to. I think there would be a delay which might run contrary to the constitutional and statutory requirement for expeditious disposal of the petition.

In this regard, I have placed the requirement for expeditious disposition of the petition and the 1

st

Respondent’s request to be allowed to tender his last witness to testify without an affidavit on the scales of justice. My view is taking into consideration all the circumstances of this case, the prospective witness being a civil servant and considering that this petition is being tried against strict timelines of which the parties are aware, my view is that sufficient reason has been given to warrant the grant of the leave sought. Justice demands that the court admits as much evidence as it is legally permissible if that will enable the court to do justice to the Ijara electorate. I note that the 1

st

Respondent still has some time to his credit. To shut out his request will be sacrificing justice at the altar of technicality. Justice should never be sacrificed at the altar of technicality or the tyranny of time if it will not prejudice the rights of any of the parties. The Petitioners will have an opportunity to cross examine the witness as they wish.

Accordingly, I am of the view that sufficient reasons have been advanced to warrant the grant of the application sought. Mohammed Bedel will testify as R1W16 without having filed any Affidavit.

It is so ordered

DATED

and D

ELIVERED

at Nairobi this 19

th

day of July, 2013.

................................................

A. MABEYA

JUDGE