Abdirahman Hussein Weytan Mohammed & Abdikadir S. Hassan v I E B C, Adan Harar Noor; Returning Officer Mandera East Constituency, Hassan Omar Mohamed Maalim & Hamaldin Adan Ahmed [2017] KEHC 1916 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION N0. 3 OF 2017

CONSOLIDATED WITH ELECTION PETITION N0. 9 of 2017

BETWEEN

ABDIRAHMAN HUSSEIN WEYTAN MOHAMMED…….....1ST PETITIONER

ABDIKADIR S. HASSAN………………………....................2ND PETITIONER

AND

IEBC..................................................................................1ST RESPONDENT

ADAN HARAR NOOR;

RETURNING OFFICER MANDERA

EAST CONSTITUENCY...................................................2ND RESPONDENT

HON. HASSAN OMAR MOHAMED MAALIM.................3RD RESPONDENT

AND

HON HAMALDIN ADAN AHMED………………..........INTERESTED PARTY

DIRECTIONS

This Election Petition has been slated for the first phase of hearing on 1st – 3rd November 2017. These dates were agreed upon by all parties after a pretrial conference was conducted on 23rd October 2017 and directions given.

The whole purpose of a pretrial conference is the management of court proceedings and all parties including the court must be committed to it.

The issue that has been popping up every now and then is one of access to the Kiems Kits. Directions have been given over and over again on this. I have however gone through the record and I do not see anywhere directed or agreed that the hearing of this petition is subject to the completion of the read only access of the Kiems Kits data.

- This court has also given directions to the effect that it is only the Deputy Registrar who will file a report in court on the read only access exercise.

- Counsels were given the liberty to make their observations during the exercise which may be used in their submissions, since the Deputy Registrar’s report will have been filed and also served on them. The 1st respondent has confirmed that they will be available for the access exercise on 7th November 2017.

- Issues have been raised by the respondents on the further affidavit filed by the 1st petitioner. The 1st & 2nd respondents have filed an application seeking to strike it out wholly or partially.

- This court again on 23/10/2017 gave directions to the effect that:

“The further affidavits to be filed Must strictly relate to the petition as pleaded.”

The court was therefore clear on what has to be filed as further affidavits.

It therefore follows that any new issues/matters/evidence introduced in the further affidavits will not be considered at all by this court, when writing its Judgment. The deponents will also not be cross-examined on such new matters.

There will be no need of filing applications to strike the further affidavits out as there is no time for hearing such applications in line with Rule 15(2) of the Election Petition Rules. Counsels will also be at liberty to submit on any such issue at the close of the hearing. The application by the 1st & 2nd respondents dated 31st October 2017 is therefore disallowed. The request by the interested party to file yet another affidavit is declined for the reason that he has already filed two affidavits before this court. His standing in this matter is clear from the Ruling allowing his enjoinment.

In view of the above, I give the following directions:

(a) The read only access exercise at IEBC to take place on 7th November 2017 at 9. 00a.m. upto completion on the same day. All parties are asked to co-operate for the exercise to run smoothly. The Deputy Registrar will file her full report on the exercise on or before 13th November, 2017.

(b) The 2nd petitioner to file and serve his further affidavits by 4p.m. today, if he has not yet filed them.

(d) Hearing of the Election Petition to commence on 2nd November 2017 – 2p.m. sharp.

………………………

H.I. ONG’UDI

JUDGE

1/11/2017