REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT GARISSA
ELECTION PETITION NO 5 OF 2017
IN THE MATTER OF ARTICLES 1, 3, 38, 81, 86, 90, 91 AND 177(1) OF THE CONSTITUTION OF KENYA , 2010
AND
IN THE MATTER OF SECTION 34, 36 AND 75 (1A) OF THE ELECTIONS ACT, 2011 (ACT NO 24 OF 2011)
AND
IN THE MATTER OF THE ELECTION (GENERAL REGULATIONS), 2012
IN THE MATTER OF THE ELECTION (PARTY PRIMARY AND PARTY LISTS) REGULATION, 2017
AND
IN THE MATTER OF THE KENYA GAZETTE NOTICE NO 8752 VOL CXIX NO 131 OF 6TH SEPTEMBER 2017
IN THE MATTER OF THE PARTY LIST NOMINATION FOR GENDER TOP UP FOR GARISSA COUNTY ASSEMBLY
BETWEEN
HAMDI AHMED ALI.....................................................PETITIONER
VERSUS
VICTORIA CHERUTO LIMO............................1ST RESPONDENT
INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION...............2ND RESPONDENT
AND
NATIONAL COHESION AND
INTEGRATED COMMISSION......................INTERESTED PARTY
RULING
The issue for determination here is whether the attendance of the witness of the 2nd Respondent should be dispensed with or not. In his submissions, Mr Ibrahim Advocate for the 2nd Respondent, applied that the affidavit of Salome Oyugi, the Manager Political Parties & Campaign Financing of the 2nd Respondent be admitted without examination. The reason for this being that, in all petitions involving party lists, only one Legal Manager has been swearing affidavits. Whereas, in other normal election petitions, affidavits are sworn by Returning and Presiding Officers who are usually within the court’s jurisdiction.
The application was opposed by both Mr Mwalimu, Advocate for the Petitioner and Mr Kirui, Advocate for the 1st Respondent on the basis that, firstly, the petition is mainly grounded on allegations of fraud, and therefore, there is need to cross-examine the 2nd Respondent's witness on the existence of two party lists. Secondly, there are allegations of collusion between the 1st Respondent and the 2nd Respondent resulting in the manipulation of the party list. Thirdly, there are also allegation of election malpractices by the 2nd Respondendent. In the circumstances, both Counsels are of the view that the ends of justice will be served if the 2nd Respondent's deponent is availed in court for examination.
I have carefully considered the rival submission by Counsels for all parties. I would agree that the issues raised in the petition and Counsels for the Petitioner and 1st respondent are rather contentious. Therefore, it would be in the interest of justice for the 2nd Respondent's witness to appear in court and shed some light on the said issues. Besides Rule 12 (13) of the Election (Parliamentary and County Elections) Petition Rules is very clear on the need for the deponents of affidavits to be examined and cross-examined subject to the election courts direction or consent of the parties not to cross-examine. In this case, there is no consent, therefore, I direct that the 2nd Respondent's witnesses avails herself in court for cross-examination on the issues raised.
DATED, SIGNED and DELIVERED this 29th day of November 2017
….................
J.J.MASIGA
SENIOR RESIDENT MAGISTRATE