By: Sadiq Ibrahim
Let me begin by saying that there’s no need to be ashamed about having such question; it’s commonly asked and widely given a complicated answer and that is why we have learned friends among us who, at least, have better understanding of the law.
So methinks the answer is yes because affidavits are statements that gives at least an appearance of being truthful, but getting a witness to come to court to testify may be an imposition that could shed some light on the credibility of the information given by the affiant before the court.
For that reason, courts do not allow affidavits to be presented as evidence in a legal proceeding.
Having said that, there are occasionally exceptions. For instance, in some claims, particular courts may allow affidavits but usually just for the very limited purpose of affirming that the documents being submitted are that of its clarity is seen by the court and the content is veracious.
it should also be noted that affidavits of witnesses can be permitted if both sides of the case, through their lawyers, agree to allow certain testimony by way of affidavit but in the case of election petition no 7 of 2018 that rule seems far from possibility.
As Kenyans await the Supreme Court ruling on the application whether to allow the applicant to be quizzed or not the following are highly possible—and you will thank me latter—but before that I should be clear that this opinion is of no cause of sub judice therefore the author remains legally not responsible of any parti pris.
It was widely condemned, scholarly questioned and precedential inexcusable the manner in which the Supreme Court allowed additional evidence because it was against both global codified of legal practice and jurisdictions that new evidence in second appeal cases was/is never admissible for that reason it complicated the entire case.
Further, the applicant whose prayer was allowed then filed res judicata reminding the court on ruling they made on the form in which the new evidence to be adduced.
On Monday, the court will again make the biggest godly decision on the rule and jurisdiction that govern the supreme court of Kenya by disallowing the application to cross examine the applicant.
The court will justify its discretion on that the Supreme Court is not a trial court in due course the bench will consider all the affidavits .