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Case Brief · caselaw.co.ke
High CourtDismissedElection Petition (Notice of Motion dated 26th June 2013)

Hassan Mohamed Hassan & another v Independent Electoral and Boundaries Commission & others

High Court of Kenya
10 July 2013
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When introducing a new witness, you must ask the court for permission to call them and to file their evidence affidavit simultaneously.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 26th June 2013 in an election petition before the High Court at Nairobi (D A Onyancha, J). The Petitioners sought leave to call Antipas Nyanjwa, a forensic document examiner, to give evidence on his report concerning anomalies in Forms 35 and 36, which they had only accessed and perused after filing the petition. The Respondents opposed, arguing the application was incompetent for coming after the pre-trial conference contrary to Rule 17, an abuse of process litigating the petition piecemeal, and calculated to introduce a new ground not pleaded. The court held the delay was not inordinate since the need for the expert evidence arose only after the forms were examined; that no rigid rules govern post-pre-trial interlocutory applications; and that the evidence fell within the pleaded grounds, as clauses 18 and 19 of the petition had put signature authenticity on Forms 35 in focus. However, the court found a fatal drafting defect: under Rule 12, a witness cannot testify unless his evidence affidavit is on the trial record, and leave under Rule 12(4) must be sought conjunctively with leave to file that affidavit. The Petitioners sought leave to call the witness alone, without leave to file his affidavit, so granting the application would be barren and necessitate a further application mid-trial. The court dismissed the application with costs under Rule 5(2), holding the Petitioners acted negligently in drawing it.

Key legal issues

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01

Whether a witness granted leave under Rule 12(4) may testify orally without an evidence affidavit

Holding

No - the witness must have an evidence affidavit on the trial record; leave to call a late witness must be sought conjunctively with leave to file the affidavit

Reasoning

Rule 12(1) requires sworn witness affidavits at filing, which become evidence-in-chief and the basis of cross-examination. Sub-rule (3) bars witnesses without affidavits, subject to sub-rules (4) and (5). The court held that leave under sub-rule (4) must extend to filing the affidavit, annexed to the supporting affidavit, so its content can be checked against the petition grounds.

p. 4
02

Whether the delay in bringing the application after the pre-trial conference was fatal

Holding

No - the delay was not inordinate and the application was brought before the full trial started

Reasoning

The need for the forensic evidence arose only after the Petitioners accessed and perused Forms 35 and 36, so they could not have filed the affidavit earlier. The court declined to lay rigid rules on post-pre-trial applications, holding each case turns on its circumstances.

p. 3
03

Whether the expert evidence would introduce a new ground of petition

Holding

No - the petition pleaded that agents signed or refused to sign Forms 35, putting signature authenticity in focus

Reasoning

Clauses 18 and 19 of the petition pleaded that agents either signed or refused to sign Forms 35s, so forensic evidence confirming or refuting signature authenticity was anticipated and within the pleaded grounds.

p. 3

Legal principles established

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  • A witness in an election petition may not testify unless his evidence affidavit is on and part of the trial record; leave under Rule 12(4) must be sought conjunctively with leave to file the evidence affidavit
  • No hard and fast rules govern interlocutory applications after pre-trial conference; each case is considered on its own circumstances

Court orders

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  1. 1.Application refused and dismissed with costs under Rule 5(2)
Jurisdiction invoked
Election Petition Rules under the Elections Act (Rule 12(4) application in an election petition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hassan Mohamed Hassan & another v Independent Electoral and Boundaries Commission & others", Case Analysis (2013). Election Petition (Notice of Motion dated 26th June 2013). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.