Gideon Ndambuki Muthiani v Frank Kichoi & 2 others [2017] KEMC 62 (KLR)
The bottom line
#A Kenyan election court refused to strike out a respondent's affidavit because the man alleging forgery never showed up for cross-examination.
What this practically means
#Executive summary
#Key legal issues
#Whether a response to an election petition must be supported by an affidavit
Yes; Rule 11 read with Rule 12(5) of the Election (Parliamentary and County) Petition Rules 2017 makes supporting affidavits mandatory
Rule 11(1) requires a respondent to file and serve a response within fourteen days, and Rule 12(5) requires that the response be supported by an affidavit sworn by the respondent. The court held the rule is mandatory and that annexing affidavits to a response is as essential as annexing affidavits to the petition itself. Counsel's contrary submission downplaying the requirement was rejected.
Whether the court has discretion to allow fresh affidavits in support of a response
The court has wide but judicious discretion under Rule 5; however no clear request had been made by the 1st Respondent to file fresh affidavits
Rule 5(1) lets the court determine the effect of non-compliance at its discretion in line with Article 159(2) of the Constitution. But timelines in the Constitution, Elections Act and Rules are in mandatory terms signifying inflexibility, and the discretion must be exercised judiciously. In any event, there was no clear request by the 1st Respondent to file fresh affidavits.
Whether the 1st Respondent's affidavit was properly commissioned
Yes; the affidavit bears a commissioner for oaths stamp and the forgery allegations were unproven because Henry Muranje failed to attend for cross-examination
The impugned affidavit bears a commissioner for oaths stamp impression. Henry Muranje swore an affidavit dissociating himself from the commissioning and was expected to testify and be cross-examined but failed to attend on two adjourned occasions. Citing Jacinta Wanjala Mwatela v IEBC and Wisniewski, the court held an adverse inference could be drawn; the allegations of fraud and forgery remained unverified claims insufficient to found a negative finding against the 1st Respondent.
Whether the affidavit and response should be struck out
No; having found the affidavit properly attested, there was no basis or justification to strike out either the affidavit or the response
The strike-out application was predicated entirely on the alleged defective commissioning of the supporting affidavit. That finding having failed, the application collapsed. The court dismissed the Notice of Motion dated 13th November 2017 with costs in the cause.
Legal principles established
#- A response to an election petition must be supported by an affidavit sworn by the respondent; Rule 12(5) of the Election Petition Rules 2017 is couched in mandatory terms
- A deponent of an affidavit raising a critical issue is under an obligation to attend court for cross-examination, failing which an adverse inference may be drawn
- Allegations of fraud or forgery must be proven; unverified claims cannot ground striking out an affidavit
Court orders
#- 1.The application dated 13th November 2017 is dismissed
- 2.Costs in the cause
- 3.The ruling to be typed on priority basis and copy furnished to counsel upon payment of requisite fees
- 4.By consent, the Election Petition to be listed for hearing on 18th, 19th and 20th December 2017, all counsel and witnesses to attend
- Jurisdiction invoked
- Rules 12(5), (6), (7) and 12 of the Election (Parliamentary and County) Petition Rules 2017; election jurisdiction under Article 87(2) of the Constitution and section 76(1)(a) of the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gideon Ndambuki Muthiani v Frank Kichoi & 2 others [2017] KEMC 62 (KLR)", Case Analysis (2017). Election Petition No. 2 of 2017 (referred to in judgment; the ruling concerns the Notice of Motion dated 13/11/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/62/eng@2017-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.