105 4.2 The Response to the Petition 4.2.1 A respondent who wishes to oppose a parliamentary or county election petition must file a response within 7 days of being served with the petition and serve within 7 days of filing the Response (Rule 11((1) & (4), Elections (Parliamentary and County Elections) Petitions Rules, 2017). The response must substantially be as in Form 4, set out in the Schedule to the Elections (Parliamentary and County) Petitions Rules, 2017. A Respondent who does not file a response will not be allowed to participate in the proceedings (Rule 11 (8) Elections (Parliamentary and County Elections) Petitions Rules, 2017). In Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others, Election Petition Appeal 2 of 2018, the Court of Appeal evaluated the decision of the respondent to file a Replying Affidavit instead of a response. The Court ruled that failure to comply with Rule 11(8) of the Election Petition Rules was ‘a grave default that would have entitled, nay required, the learned judge to exclude the appellant from the proceedings as a party’. 4.2.2 Rule 11 of the Elections (Parliamentary and County Petitions) Rules, 2017 provides for the Rules relating to the response to the petition as follows: i. The respondent may file a response, it is not mandatory. In the event a respondent has not filed a response, (s)he should not be allowed to act or appear as a party: ii. The response must be filed within 7 days of being served with the Election petition; iii. There must be as many copies as there are parties to the Election Petition; iv. The Response must be served within 7 days of filing, unless directed otherwise by Court; v. The response must be in relation to each claim in the petition; and vi. Respondents may file a joint response. 4.2.3 Where the petitioner claims that they or any other candidate, as opposed to the respondent, was validly elected, the response must state the facts upon which the respondent relies to prove that the petitioner, or that other person, was not duly elected. 4.3 Witness Affidavits 4.3.0 Rules 8(4)(b) and 12 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, require the parties to file, together with the election petition or response to the election petition, affidavits sworn by the parties, and all witnesses the parties intend to call at the trial. 4.3.1 Every witness affidavit must: (i) state the substance of the evidence of the witness; and (ii) be served on all the parties to the election petition. 4.3.2 Rule 12(14) provides that all witness affidavits used in EDR must in addition to the Election Rules, comply with the provisions of the Oaths and Statutory Declarations Act and Order 19 of the Civil Procedure Rules, 2010. 4.3.3 Failure to file a supporting affidavit is fatal to a petition: it is not a procedural technicality as the affidavit contains the evidence a party wishes to rely on (Patrick Ochieno Abachi & BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION