117 ii. further affidavits must not seek to introduce massive evidence which would, in effect, change the nature of the petition or affect the respondent’s ability to respond to the said evidence; iii. the parties to an election petition should strive to adhere to the strict timelines set out in EDR laws; and iv. admission of new evidence must not unfairly disadvantage the other parties to an election petition. 4.7.3.5 Leave may be granted to file further evidence either in addition to existing evidence or entirely new evidence if it assists the court in the just disposal of the matter (Wavinya Ndeti v IEBC & 4 Others, Nairobi High Court Petition No. 4 of 2013). Discretion may be exercised in favour of an applicant provided that it will not prejudice the opposing side (Habil Nanjendo Bushuru v IEBC & 3 Others, Kakamega High Court Election Petition 8 of 2017; Ahmed Abdulahi Mohamad & Another v Hon. Mohamed Abdi Mohamed, Nairobi High Court Election Petition 14 of 2017 (consolidated with Garissa High Court Election Petition 3 of 2017); and Apungu Arthur Kibira v IEBC & 2 Others, Kakamega High Court Election Petition 6 of 2017). To establish the nature, extent and context of the proposed further evidence, a party should annex the proposed affidavits (Ahmed Abdulahi Mohamad & Another v Hon. Mohammed Abdi Mahamud & 2 Others, Nairobi High Court Election Petition No. 14 of 2017). 4.7.3.6 Leave will not be granted where the additional evidence introducing new and distinct complaints requiring responses and further replies by the petitioners would change the nature of the petition and may impact on the EDR timelines (Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 Others, Kakamega Election Petition No. 8 of 2013; Robinson Simiyu Mwanga & Another v IEBC & 2 Others, Kitale High Court Election Petition 1 of 2017; and Albeity Hassan Abdalla v IEBC & 2 Others, Malindi High Court Election Petition 8 of 2017), or where such evidence was available at the time of filing (Robinson Simiyu Mwanga & Another v IEBC & 2 Others, Kitale High Court Election Petition 1 of 2017), or where it will only act as a fishing expedition and serve to expand the petition (Michael Gichuru v Hon. Rigathi Gachagua & 2 Others, Nyeri High Court Election Petition No. 2 of 2017). 4.7.3.7 Finally, further affidavits may not be filed without leave of court or after hearing has closed, irrespective of their relevance (Joseph Obiero Ndiege v Orange Democratic Party & Another, Nairobi High Court Election Petition Appeal No. 19 of 2017). 4.7.4 Withdrawal of Election Petitions and Substitution of Petitioners 4.7.4.1 Because elections petitions are inherently suits in the public interest, they cannot simply be withdrawn at the instance of the petitioner, or even on the consent of the parties (Peter Gatirau Munya v IEBC, Meru County Returning Officer & Kiraitu Murungi, Meru Election Petition 6 of 2017). An election petition can only be withdrawn with the leave of the election court (Rule 21(1), Elections (Parliamentary and County Elections) Petitions Rules, 2017). Further, a petitioner wishing to withdraw an election petition must: • file an application for withdrawal of the petition, in Form 5 set out in the Schedule to the Elections (Parliamentary and County Elections) Petitions Rules, 2017; • file an affidavit stating the grounds on which the petition is intended to be withdrawn; • serve the application and the affidavit on the respondent(s); and BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION