Nairobi — Prime Minister Raila Odinga suffered a setback in his quest to challenge the election of Uhuru Kenyatta, after the Supreme Court expunged an additional affidavit he filed last Friday. According to the court, the PM should have filed the affidavits while lodging his petition or sought for the leave of the court to file further affidavits.
Reading the court decision, Justice Philip Tunoi said that another six affidavits which were attached to that of Odinga should be removed from the court records. "If we allow the seven affidavits to remain on record the same will be prejudicial to the respondents and this will amount to a miscarriage of justice and we cannot allow for such in the circumstances", the court ruled.
The court also ordered that Odinga pays the cost for the proceedings challenging the additional affidavit. Odinga's affidavit had introduced fresh evidence on alleged inconsistencies in presidential election results in 122 other polling stations.
The other six affidavits placed on record were from Oduor Ong'wen, the Director of Policy, Strategy and Research for the Odinga presidential campaign, ODM's nominated Senator Janet Ongera, Lawrence Gumbe, Andrew Mwambogo, John Walubengo and Raj Pal Sena that had not been formally filed but annexed as exhibits.
The court said that it could not shoulder the burden of the omissions of the petitioners, who failed to make available all the affidavits in time or seek through an oral application, the leave of the court to file the affidavits.
Section six of the Supreme Court rules require a petition against the presidential election to be filed within seven days after the results are announced and that respondents have three days after service within which to respond to the petition.
According to the court, there is no provision for additional affidavits and it is left to the court's discretion to determine the modalities of filing further evidence and affidavits.
"The court can exercise its powers and discretion to allow for further affidavits and evidence if it is specifically applied for, it is not a matter of right."
"There must be a fair and level playing field so that neither the parties nor the court loses the time that they are entitled to and no extra burden should be imposed on the court or on the parties as a result of omissions or inadvertencies which were foreseeable," the court asserted saying that the timelines for determining the petitions were 'tight short and limited.'
The court said that the parties to the petition were obligated to abide by the set timelines in rules set governing the petitions just as the court was bound by the rules to make its decision.
The court ruled that the petitioner had used "the most unusual" way of availing as annexure or evidence as they could not stand on their own as evidence.
Respondents Uhuru Kenyatta, William Ruto, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan had on Monday argued that they would be unable to respond within reasonable time to the bulky 839-page document.
The court affirmed positions held by the respondents saying that it acted with caution not to grant leave as the new material was so substantial that the respondents could not respond effectively.
Odinga's lead counsel George Oraro had insisted that nothing barred him from adducing new pieces of evidence before the court and the pleadings in the petition he filed had not changed. He told the court that he had relied on material provide by the IEBC.
"The evidence is in conformity with the pleadings made in the petition. I am surprised by arguments of respondents' counsel but the truth is that it all concerns why they want to put off the case," he said adding that no provision in the rules prohibited a petitioner from filing a response to a replying affidavit.
"Nothing has been changed from the original petition unless the counsel wants to say that exhibits are produced in court for entertainment and not for interrogation and analysis," he added.
Lawyer Fred Ngatia representing Kenyatta and Ahmednasir Abdullahi acting for Hassan argued that the new complaint altered the course of the case and that it will be impossible to file responses to a document they said was 900 pages.
"The court must make it clear if complaints brought in time can be amplified by other complaints brought in when they are time bound," Ngatia urged the court, maintaining that a petitioner was bound by his original pleadings.
Lordrick is a graduate of the University of Nairobi with a bachelor's degree in broadcast journalism. He is passionate about political and governance issues. He also takes keen interest in human rights matters, justice and is fond of sports.