Langat Donnie Kiptoo Arap v Sikuku Martin Simotwo, Constituency Returning Officer, Langata Constituency & 2 others [2017] KEMC 109 (KLR)
The bottom line
#A Kenyan election court struck out affidavit paragraphs that tried to sneak new claims into a petition after pleadings closed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Supplementary and Further affidavits introduce new causes of action not pleaded in the Petition
Yes — the offending paragraphs in the affidavits raise matters not pleaded in the Petition and amount to amending the Petition through the back door; they were struck out
The court noted that although parties were allowed to file further affidavits at pre-trial on 9th October 2017, there was no request to introduce new facts or evidence outside the Petition. The new allegations — including recruitment irregularities, manipulation of vote counting, violence and collusion — required the Respondents to respond to unpleaded matters. Reliance was placed on Hassan Noor Hassan v IEBC & Ali Roba and Raila Odinga v IEBC, and on the strict constitutional timelines for election petitions.
Legal principles established
#- The court's discretion to admit additional affidavits and new evidence under Rule 15(1)(h) must be exercised judiciously, and any application to adduce new evidence must be made within 28 days of the declaration of results
- A party may not introduce new causes of action through supplementary or further affidavits that were never pleaded in the petition, as this prejudices the other parties and changes the nature of the petition
Court orders
#- 1.The offending paragraphs in the Further Affidavit of JACQUELINE BASIYE, the Further Affidavit of KEVIN BASIYE (paragraphs 7, 8, 9, 10), the Further Affidavit of EDWARD MWAKIMA (paragraphs 7, 8, 9, 10, 11, 12, 13) and the Petitioner's Further affidavit sworn on 4th October 2017 are struck out
- 2.Costs of the application to the 3rd Respondent
- Jurisdiction invoked
- Articles 47, 50, 159 and 258 of the Constitution; Section 76 of the Elections Act; Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Langat Donnie Kiptoo Arap v Sikuku Martin Simotwo, Constituency Returning Officer, Langata Constituency & 2 others [2017] KEMC 109 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/109/eng@2017-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.