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MagistratePartially AllowedElection Petition (Parliamentary and County Elections) – Mombasa (number not stated in judgment)· [2013] KEMC 83 (KLR)

Mwangi Kimwele & 4 others v Kibwana Saleh Baya & 2 others [2013] KEMC 83 (KLR)

Chief Magistrate's Court (Election Petition)
29 July 2013
JGJ. Gandani
532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election petition failed because the petitioner never showed up to testify and be cross-examined, so documents alone couldn't prove it.

What this practically means

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Executive summary

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At the hearing of an election petition before the Chief Magistrate's Court at Mombasa, counsel for the petitioners (Mr. Lumatete) indicated he could not trace the 3rd petitioner, Juma Athumani Lubambo, said to have taken up employment outside Mombasa, nor avail the remaining witnesses. Mr. Buti for the respondents objected to the admission of the 3rd petitioner's affidavit and those of the remaining witnesses, invoking Rules 10(3)(b), 11(1) and 12(1) of the Elections (Parliamentary and County Elections) Petition Rules, 2013, which make the petitioner a mandatory witness. Miss Ngugi for the 2nd and 3rd petitioners associated herself with that position. The court held that a petitioner is a mandatory witness who must testify and be subjected to cross-examination, and that 'calling' a witness under Rule 12(1) means availing him or her for cross-examination and re-examination so that the substance of affidavit evidence can be tested on the contested issues. Relying on Peter Gichuki Kurigar v IEBC & 2 others (HC Nyeri Election Petition No. 3 of 2013), the court found that admitting untested affidavits would highly prejudice the respondents where adverse allegations are made. The 3rd petitioner's petition, which could not stand on documents alone and remained unproved, was dismissed with costs to the respondents, and the affidavits of Musiwa Hassan Ali, Victor Musee Owino and Riwa Mwangolo were expunged from the record. Hearing of the remainder of the petition was fixed for 31st July 2013 and 1st August 2013.

Key legal issues

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01

Whether the 3rd petitioner's petition could proceed without his testimony

Holding

It could not; the petition was dismissed

Reasoning

Rule 10(3)(b), 11(1) and 12(1) of the Election Petition Rules 2013 make the petitioner a mandatory witness. Calling a witness means availing him or her for cross-examination and, if need be, re-examination. Since the 3rd petitioner took up employment outside Mombasa and could not be traced, his petition could not stand on documents alone and remained unproved.

p. 2
02

Whether affidavits of witnesses not availed for cross-examination are admissible

Holding

They are inadmissible and were expunged from the record

Reasoning

Under Rule 12(1), a petitioner must file affidavits only of witnesses he intends to call at trial, and calling means availing them for cross-examination. Affidavits of persons not availed are untested on contested issues and would highly prejudice the respondents. The affidavits of Musiwa Hassan Ali, Victor Musee Owino and Riwa Mwangolo were therefore expunged.

p. 2

Legal principles established

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  • A petitioner is a mandatory witness who must testify in court and submit to cross-examination before the petition can be proved
  • Calling a witness under Rule 12(1) means availing the witness for cross-examination and re-examination; affidavits of witnesses not called cannot stand

Court orders

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  1. 1.The 3rd petitioner's petition is dismissed as against the respondents with costs to the respondents
  2. 2.The affidavits of Musiwa Hassan Ali, Victor Musee Owino and Riwa Mwangolo are expunged from the record
  3. 3.Hearing of the petition to proceed on 31/7/2013 at 11.00 a.m. and 1/8/2013 at 9.00 a.m.

Authorities

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Legislation

  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 10(3)(b)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 11(1)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 12(1)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 12(2)(c)

Cases cited (1)

  • Peter Gichuki Kurigar versus Independent Electoral Boundaries Commission and 2 others
    [2013] eKLR, HC Nyeri Election Petition No. 3 of 2013
Jurisdiction invoked
Elections (Parliamentary and County Elections) Petition Rules, 2013 (Rules 10(3)(b), 11(1), 12(1))

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, "Mwangi Kimwele & 4 others v Kibwana Saleh Baya & 2 others [2013] KEMC 83 (KLR)", Case Analysis (2013). Election Petition (Parliamentary and County Elections) – Mombasa (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/83/eng@2013-07-29

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