Wilson Pkerer Chekeruk v Loporna Pyatich Lonyangatodo & 2 others [2017] KEMC 27 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Threshold for extension of time to file further and/or additional witness affidavits in an election petition
The application fails: the petitioner did not lay sufficient basis for the delay, the intended affidavits introduced new complaints in polling stations not mentioned in the petition, and allowing them would change the scope and nature of the petition and prejudice the respondents.
The court applied the guidelines in Raila Odinga v IEBC: admission of additional evidence is discretionary, not automatic; evidence must not be massive so as to change the petition's character or hamper response; parties must adhere to strict EDR timelines; and new evidence must not unfairly disadvantage other parties. The petitioner's evidence was new and substantial, hearing dates were fixed, and respondents would be prejudiced, curtailing their right to fair hearing.
Whether the intended further affidavits amounted to amending the petition through the back door
Yes - apart from the Amolem Primary School allegation already pleaded in paragraph 6 of the petition, the rest were new issues on polling stations mentioned in the petition but on totally different complaints.
The court compared the petition's allegations with the intended further affidavits and found that the allegations concerning Surumpen Nursery School and Kokorosion Manyatta Mobile polling stations, among others, were fresh complaints not contained in the petition. Their introduction would patch up the case and give rise to significant new allegations, a serious departure from the original case, contrary to the Supreme Court's guidance.
Legal principles established
#- An election court has discretion to allow filing of further affidavits and admission of additional evidence, but will not do so where the grant will prejudice the other parties or undermine the constitutional imperative of timely resolution of electoral disputes
- Admission of additional evidence in an election petition is not an automatic right; it is discretionary and subject to strict timelines
Court orders
#- 1.The application dated 28th September 2017 was dismissed with costs
- Jurisdiction invoked
- Election Act No. 24 of 2011 and the Election (Parliamentary and County Elections) Petition Rules, 2013, in respect of the election for Member of County Assembly, Masol Ward, Sigor Constituency, West Pokot County
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Pkerer Chekeruk v Loporna Pyatich Lonyangatodo & 2 others [2017] KEMC 27 (KLR)", Case Analysis (2017). Election Petition No 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/27/eng@2017-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.