Hassan Noor Hassan v Independent Electoral and Boundaries Commission [I.E.B.C], Mandera County Returning Officer (David Maro Ade), Ali Ibrahim Roba & Mohamed Ahmed Arai [2017] KEHC 2263 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF:  THE CHALLENGE OF THE VALIDITY OF THE MANDERA COUNTYGOVERNOR ELECTION, 2017

AND

IN THE MATTER OF:  ARTICLE 1 (1); 2(2); 3(1); 4(2); 10; 21(1); 23; 38(3) (c);47(2); 48; 81(a); & (e); 82(2) (b); 84; 86; 87(2) & (3); 88(5);165(3) (a) AND (e); & 180(1) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF:  SECTION 75, 76, 80 AND 82 OF ELECTIONS ACT NO. 2 OF 2011

AND

IN THE MATTER OF:  LEGAL NOTICE NO.128 OF 2012, THE ELECTIONS (GENERAL)REGULATIONS, 2012

AND

IN THE MATTER OF:  THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS)PETITION RULES, 2017

AND

IN THE MATTER OF:  LEGAL NOTICE NO. 126 OF 2012 (THE ELECTIONSREGISTRATION OF VOTERS) REGULATIONS, 2012

AND

HASSAN NOOR HASSAN……………...................PETITIONER/APPLICANT

-  VERSUS -

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION [I.E.B.C]............................1ST RESPONDENT

THE MANDERA COUNTY RETURNING OFFICER

(DAVID MARO ADE)…………………………….……….......2ND RESPONDENT

ALI IBRAHIM ROBA………………………………….......….3RD RESPONDENT

MOHAMED AHMED ARAI…………………………........…..4TH RESPONDENT

RULING NO. 3

1. The 1st and 2nd Respondents have asked the court to expunge from the court records the exhibits “BAK 9” and “BAK 11”.

2. Those exhibits were annextures to the affidavit of PW17, MOHAMUD IBRAHIM ALIO.

3. Mr. Nyamodi, the learned advocate for the 1st and 2nd respondents submitted that the said annextures were pieces of evidence which did not emanate from PW 17.

4. It is to be noted that “BAK 9” is a Certificate under the name of IBRAHIM MOHAMUD IBRAHIM, who states that the video clips and the transcripts thereof, had been made by him.

5. Meanwhile, “BAK 11” is another certificate by IBRAHIM MOHAMED IBRAHIM, who states that he made the attached video together with the transcripts therefrom.

6. First, the respondents said that they had never been provided with the videos mentioned in the two certificates.

7. If that be the case, the respondents should have pointed out the position at the earliest possible opportunity.

8. There is no reason which the respondents have advanced to explain why they had not drawn the attention of the petitioner and that of the court, to the fact that the video clips referred to in the 2 certificates had not been made available to them.

9. At least, I think that the failure to ask for the video clips earlier, can be attributed to the respondents oversight or their failure to detect the reference, in the affidavit of PW 17, to the videos which the witness sought to produce.

10. Of course, the petitioner was under an obligation to provide the respondents with the videos.  But when the petitioner did not make available the videos, the respondents ought to have asked for them much earlier.

11. The second and more substantive ground raised by the respondents was that the videos could only be admissible in evidence if they were produced by the persons who had made them.

12. In this case, the persons who made the videos are not witnesses who will testify at the trial.

13. The petitioner concedes that the persons who made the videos are not being called as witnesses at the trial.  Nonetheless, Prof. Ojienda, the learned advocate for the petitioner, submitted that provided the maker of the videos had signed a certificate to confirm that fact, the video would be admissible under the Evidence Act.

14. Counsel added that if the respondents had concerns about the admissibility of the videos, such issue ought to have been raised during the pre-trial conference.

15. I share the view expressed by the petitioner, that the issue ought to have been raised at the earliest opportunity, which is during the pre-trial conference.

16. But if the issue was not so raised, as in this case, does that mean that the evidence became automatically admissible in evidence?

17. The petitioner appears to have provided a part of the answer, when he had said that at the time when the witness had been sworn in, the respondents could still have had an opportunity to challenge the admissibility of the videos.

18. Considering that the 1st and 2nd respondents did not raise the issue before the petitioner’s witness had asked the court to accept his affidavit and the annextures, would that render the said affidavit admissible?

19. My answer is that the admissibility of evidence ought not to be a matter for presumption.

20. For instance, if a party called a witness during Formal Proof, in the absence of the defendant, that fact alone cannot be taken to mean that everything said by the witness was admissible in evidence.

21. In this case, the certificate issued in relation to the videos, was signed by a person who allegedly made the videos.

22. The fact that he had made the said certificate does not then render the videos admissible, if the maker of the videos does not attend court as a witness.

23. Secondly, the person who allegedly made the videos has not complied with the requirements governing the admissibility of evidence, as set out both in the Evidence Act and in the Kenya Information and Communication Act (KICA).

24. The certificate does not talk about the functionability of the gadgets used to make the videos.  The certificate should have specifically stated that the gadget was in good working condition.

25. It should also have specified the person who produced the video, presumably from the raw material which was captured by whoever undertook that task.

26. Finally, the certificate ought to have specified that the videos were produced without any manipulation of the raw images which had been captured.

27. I find and hold that because certificates have been produced by PW 17, who is not the person who had made the videos; and because the certificates were inadequate in themselves, the videos which they relate to cannot be produced by this witness, PW 17.

28. Accordingly, the videos and the transcripts are not admissible in evidence through PW 17.

DATED, SIGNED and DELIVERED at NAIROBI this1st dayof November2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Prof Ojienda, Hassan & Miss Awuori for the Applicant/Petitioner

Nyamodi & Miss Kitur for the 1st Respondent

Nyamodi & Miss Kitur for the 2nd Respondent

Ahmednasir SC, Issa, Busaidy & Mrs. Ahomo for the 3rd Respondent

Ahmednasir SC, Issa, Busaidy & Mrs. Ahomo for the 4th Respondent

Collins Odhiambo – Court clerk.