107 4.3.9 Affidavits must be drawn in the first person (Order 19 Rule 5 of the Civil Procedure Rules, 2010). Despite the singular form of the first person being ‘I’ and the plural form ‘We’, only a single person can swear an affidavit. 4.3.10 An affidavit sworn by two or more persons may be deemed incurably defective and struck out. In Thomas Malinda Musau & 2 Others v IEBC & 2 Others, Machakos Election Petition No. 2 of 2013, the Court explained the rationale for this rule as follows: The affidavit dated 18th March, in support of the Petition, is deponed by three petitioners jointly ... It is apparent that some averments are peculiar to individual deponents. This means that the averments deponed do not belong to other deponents who have appended their signatures thereon. The averments clearly show that not all deponents have the same perception or belief. When it comes to cross-examination it may create some difficulty and/or embarrassment. This may result into an injustice being done because there will be frustration on the part of the party cross-examining … Order 19 of the Civil Procedure Rules requires an affidavit to be drawn in first person form. Allowing a plural affidavit like the one deposed herein will be doing an injustice to the Respondents. The mischief cannot be cured by Article 159 (2) (d) of the Constitution… The joint affidavit deponed by the Petitioners herein…is hereby struck out. They are however granted leave to file a compliant affidavit in support of the Petition within three days. Corresponding leave is granted to the Respondents to file responses thereto if need be within three (3) days. 4.3.11 Nonetheless, even though the joint affidavit is deemed irregular, this does not necessarily invalidate it and the Court may excuse such procedural requirements (Geoffrey Githinji Mwangi v Jubilee Party & 9 Others, Nanyuki Magistrates Court Petition 1 of 2017). 4.3.12 The affidavit must be commissioned by a Commissioner for Oaths in accordance with sections 4 and 8 of the Oaths and Statutory Declarations Act. Failure to comply with such requirement is deemed fatal to the affidavit. In David Wamatsi Omusotsi v Returning Officer Mumias-East Constituency & 2 Others, Kakamega Election Petition 9 of 2017, the Court struck out supporting affidavits for being stamped by a firm of advocates instead of a Commissioner for Oaths. In its dictum, the Court held that a document stamped by a person other than a Commissioner for Oaths is a foreign document and not an affidavit capable of supporting a petition or adducing evidence. 4.3.13 A further or supplementary affidavit that introduces new evidence and/or grounds, beyond those pleaded in the petition, is liable to be struck out. The rationale for this rule is that allowing such an affidavit to stand would be tantamount to introducing new evidence through the back door. In Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 Others, Kakamega Election Petition No. 8 of 2013, the Court explained the rule in the following words: The further affidavits as per the court order, were only meant to clarify or amplify the specific complaints raised under paragraph 12 of the petition, which gives the particulars of the election dispute. They were not meant to materially change the position of the petition. Since the contents of the said further affidavits raise disputes or complaints not contained in paragraph 12 of the petition, if they are allowed to stand, they will have the effect of materially changing the position of the petition. It is therefore my finding that the four further affidavits filed by the petitioner do not comply with the pre-conditions for leave granted by the court to file the same, and they have to be struck out. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION