Ndago v Independent Electoral & Boundaries Commission & 2 others (Election Petition 2 of 2022) [2022] KEMC 4 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Availment of election materials (Forms 36A and polling station diaries) in the court's and parties' possession
Granted. The materials are election materials in the exclusive possession of the 1st and 2nd respondents; no prejudice to the 3rd respondent; copies to be served on the 3rd respondent and the court within 7 days
Relying on section 80(1)(d) of the Elections Act and Article 159(2)(d), and Regulations 93 of the Elections (General) Regulations 2012 and Rule 16 of the Petition Rules on custody of election materials, the court found no prejudice would be suffered if certified copies were supplied, citing Justus Mangumbu Omiti v IEBC. Parties may affix their own seals on the materials.
Whether the seven witness affidavits should be struck out for failure to annex proof of agency
Refused; the remedy was a request for further particulars, not striking out, and admissibility cannot be challenged by application at that stage
Rule 15(1)(e) permits orders for further particulars. Citing Mututho, Ogutu and Ongoro authorities, the court held particulars prevent surprise and ensure a fair trial. Rule 12(3) and (10) make affidavits the deponents' evidence-in-chief; evidential value is tested at cross-examination. An election petition carries a public interest element, so refusing to consider affidavits on a technicality is erroneous (Dickson Mwenda Kithinji).
Whether documents introduced through the petitioner's replying affidavit constitute new evidence offending section 76 of the Elections Act
The documents were expunged; the petitioner must seek leave formally, and whether such leave amounts to amendment or new evidence will be determined after hearing all parties
While agreeing the petitioner could not introduce documents via a replying affidavit, the court held that any application for leave must be made and considered on its own merits after hearing all parties; it did not conclusively determine the section 76 question at that interlocutory stage.
Whether the petitioner's supporting affidavit's non-compliance with rule 12(2)(b), (c) and (d) rendered the petition incompetent
Non-compliance acknowledged but not fatal; affidavit and petition not struck out
The court identified two conflicting High Court schools of thought (Jimmy Mkala Kazungu and Mbaya Sayeed Omsiritsa versus Martha Wangari Karua and Samuel Kazungu Kambi) but held the Supreme Court settled the law in Lemanker Trannat, allowing curative discretion under Article 159 where jurisdiction is not expressly limited. The petition itself disclosed the missing information, so substantive justice favoured hearing the petition on merits.
Leave to file three further witness statements of presiding officers
Dismissed; the court has discretion under rule 15(1)(h) but the proposed affidavits were not annexed, so discretion could not be exercised in a vacuum
Applying Raila Odinga guidelines (admission not automatic; must not introduce massive evidence or unfairly disadvantage parties) and Kidero, Ndeti and Andama, the court affirmed its discretion but agreed with the petitioner that proposed affidavits must be annexed, per Ahmed Abdullahi Mohamad. The affidavits were irregularly filed on 31 October 2022 without leave, making the omission fatal.
Legal principles established
#- A party seeking leave to file further affidavits or new evidence must annex the proposed affidavits to the application; discretion cannot be exercised in a vacuum
- Challenges to the admissibility of a witness affidavit or the locus standi of a deponent in an election petition cannot be raised by interlocutory application; evidential value is tested at cross-examination
- Non-compliance with rule 12 particulars in a petitioner's supporting affidavit is not fatal where the petition itself discloses the missing information, per the Supreme Court's curative discretion under Article 159
- An election court has discretion under rule 15(1)(h) to allow further affidavits and additional evidence, provided the evidence does not change the nature of the petition or unfairly disadvantage other parties
Court orders
#- 1.Certified copies of the requested election materials (Forms 36A and polling station diaries) be provided to the parties and to the court; no prejudice to the 3rd respondent
- 2.All election materials be in the custody of the 1st and 2nd respondents, with parties at liberty to affix their own seals in addition to the respondents' seals; parties at liberty to apply
- 3.Since the materials had been supplied to the petitioner, they be served upon the 3rd respondent and the court within 7 days of the order
- 4.The documents annexed to the petitioner's replying affidavit filed on 18 October 2022 be expunged from the record
- 5.Prayer 1 of the 3rd respondent's application dated 7 October 2022 (striking out the named witnesses' affidavits) is dismissed
- 6.The petitioner's supporting affidavit is not struck out; prayer (ii) of the 3rd respondent's application is dismissed and the application dismissed with costs in the cause
- 7.The 1st and 2nd respondents' application dated 14 October 2022 for leave to file further witness statements is dismissed with costs to the petitioner
- Jurisdiction invoked
- Section 80 of the Elections Act 2011; Article 159(2)(d) of the Constitution of Kenya 2010; Elections (Parliamentary and County Elections) Petition Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndago v Independent Electoral & Boundaries Commission & 2 others (Election Petition 2 of 2022) [2022] KEMC 4 (KLR)", Case Analysis (2022). Not stated in the judgment (Election Petition, Kilifi). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/4/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.