129 4.8.1.6 Although the affidavit of a witness who fails to turn up for cross-examination remains part of the record of the election court, little weight can be attached to the evidence contained therein (Nuh Nassir Abdi v Ali Wario & 2 Others, Mombasa Election Petition No. 6 of 2013; Ramadhan Seif Kajembe v Returning Officer, Jomvu Constituency & 3 Others, Mombasa Election Petition No. 10 of 2013; and Justus Gesito Mugali M’Mbaya v IEBC & 2 Others, Kakamega Election Petition No. 6 of 2013). In Josiah Taraiya Kipelian Ole Kores v Dr. David Ole Nkedianye & 3 Others, Nairobi Election Petition No. 6 of 2013, the Court held as follows: I now turn to the issue of the Petitioner failing to testify. I find fault with the Petitioner’s argument that there is no rule in law or evidence that requires verbal evidence for an affidavit to be deemed credible. In my opinion, an election petition is no ordinary suit and the facts deponed therein must be interrogated. Such interrogation can only be done by testing the evidence through cross-examination of the deponent. Failure to attend court for the testing of such allegations in such a deposition makes the Affidavit to be just that, mere allegations. It is evidence without any probative value. In my view therefore, it was imperative for the Petitioner to have testified during the hearing of this Petition given that he was responsible for its institution and had made adverse claims against the Respondents. On the day he was supposed to testify, he sought and found comfort in a trip to South Africa and sought to have his Affidavit admitted without cross-examination. That won’t do. The allegations remained just that, bare allegations not proved. 4.8.1.7 However, the parties may, by consent, accept not to cross-examine the deponents of affidavits but shall have the deponent’s evidence admitted as presented in the affidavits (Rule 12(13), Elections (Parliamentary and County Elections) Petition Rules 2017). 4.8.2 Adjournments 4.8.2.1 An election court is required to conduct the trial of an election petition on a day-to-day basis until the trial is concluded (Rule 20(1), Elections (Parliamentary and County Elections) Petitions Rules, 2017; and Rule 22(1), Court of Appeal (Election Petition) Rules, 2017). The court, however, may adjourn the trial for sufficient reason. Courts cannot adjourn the trial of an election petition for more than five days (Rule 20(2) of the Elections (Elections (Parliamentary and County Elections) Petitions Rules, 2017; and Rule 22(2) of the Court of Appeal (Election Petition) Rules, 2017). 4.8.2.2 Where the judge or magistrate hearing an election petition is incapacitated by illness or any other cause, the Chief Justice must appoint another judge or magistrate to continue and conclude the trial of the petition (Rule 20(3), Elections (Parliamentary and County Elections) Petitions Rules, 2017). The new judge or magistrate is obliged to continue the proceedings from where the predecessor had left (Rule 20(4), Elections (Parliamentary and County Elections) Petitions Rules, 2017). There is no room, therefore, for applications for restarting the trial of an election petition de novo upon the change of the judge or magistrate hearing the petition. The rationale for this rule lies in the constitutional objective of timely resolution of electoral disputes. 4.8.3 Evidential Matters 4.8.3.1 Electronic Evidence 4.8.3.1.1 The law on the admissibility of electronic evidence is set out in sections 78A and 106A to 106I of the Evidence Act. Generally, electronic evidence will only be admitted if it meets safeguards and conditions set out in these sections (Coalition for Reforms and Democracy (CORD) & Another v Republic of Kenya & Another, Nairobi High Court Constitutional Petition BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION