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MagistrateOtherElection Petition No. 1 of 2017· [2017] KEMC 102 (KLR)

Odongo Victor Robert v Independent Electoral & Boundaries Commission, Returning Officer Kagan Ward Ezekiel Juma Otieno & Onyango Philemon (Election Petition 1 of 2017) (Civ) [2017] KEMC 102 (KLR)

Chief Magistrate's Court at Homa Bay
1 November 2017
TOT. Obutu
119 words in judgment
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The bottom line

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In a Homa Bay election petition, a witness who did not swear an affidavit can only point to its attached documents; the person who swore it must explain them.

What this practically means

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Executive summary

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This is a short interlocutory ruling/directions decision by the Chief Magistrate's Court at Homa Bay in Election Petition No. 1 of 2017, in which Odongo Victor Robert petitioned against the Independent Electoral & Boundaries Commission, the Returning Officer for Kagan Ward, Ezekiel Juma Otieno, and Onyango Philemon. The court was asked to rule on a point of trial procedure: whether the petitioner's witness, who had not sworn the affidavit of the petitioner's Chief Agent, could take the court through the documents annexed to that affidavit. The magistrate held that the witness could only refer to the documents because he was not their deponent; the Chief Agent, having sworn the affidavit, was the correct person to take the court through its contents. The court further reasoned that permitting the witness to do so would waste judicial time, since the Chief Agent would in any event testify on the same affidavit. The court directed that the witness be confined to referring to the annexed documents, that the Chief Agent take the court through them, and ordered that the matter proceed to hearing. No authorities were cited, no costs order was made, and no final determination of the petition was reached at this stage. The ruling is procedural and evidentiary in nature, concerning the proper presentation of affidavit evidence at trial.

Key legal issues

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01

Whether a non-deponent witness may introduce and take the court through documents annexed to another person's affidavit

Holding

He may only refer to such documents; the deponent (Chief Agent) must take the court through them

Reasoning

The court reasoned that the petitioner's witness did not swear the Chief Agent's affidavit and therefore could not speak to its contents. Since the Chief Agent would himself testify on the same affidavit, allowing the witness to do so would duplicate evidence and waste the court's time. The court issued directions confining the witness to referring to the annexed documents and directing that the Chief Agent take the court through them, then ordered the matter to proceed.

p. 2

Legal principles established

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  • A witness who did not swear an affidavit cannot take the court through the documents annexed to it; the deponent is the proper person to do so

Court orders

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  1. 1.That the petitioner's witness may only refer to the documents attached to the affidavit of the Chief Agent
  2. 2.That the Chief Agent is the proper person to take the court through the documents as they were deponed in his affidavit
  3. 3.That the matter to proceed
Jurisdiction invoked
Election petitions jurisdiction of the magistrates' court under the Elections Act (petition filed as Election Petition No. 1 of 2017)

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, "Odongo Victor Robert v Independent Electoral & Boundaries Commission, Returning Officer Kagan Ward Ezekiel Juma Otieno & Onyango Philemon (Election Petition 1 of 2017)  (Civ) [2017] KEMC 102 (KLR)", Case Analysis (2017). Election Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/102/eng@2017-11-01

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