154 5.3.2. Rule 11 of the Supreme Court (Presidential Election 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. Any party who does not respond to the petition or file notice of intention not to oppose shall not be allowed to be a party in the proceedings (Rule 11(3)); ii. The response must be filed and served within 4 days of service of the Election petition; iii. The response must be accompanied by Replying Affidavit(s) sworn by the respondent(s) and any of their witnesses, setting out the substance of the evidence to be relied upon; iv. The response must be in relation to each claim in the petition; and v. Where the respondent does not intend to oppose the Petition, he or she must file a notice of intention not to oppose the petition within 3 days of service of the Petition (Rule 11(2)). 5.4. Witness Affidavits 5.4.1. Rule 9 and 11(1)(b) of the Supreme Court (Presidential Election Petitions) Rules, 2017, require the Petitioner 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. 5.4.2. 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. Furthermore, the supporting affidavit must be filed contemporaneously with the Petition, to enable the respondent to be aware of the case before it and the requisite time to respond. 5.4.3. The Affidavit cannot annex or adduce the affidavit of the other witnesses. Each Affidavit should be independent, and in the event the affidavit annexes another witnesses’ affidavit, such evidence of the witnesses is deemed testimony of the main deponent and as such the witnesses cannot be examined on it. In Raila Odinga & Others v IEBC & 4 Others, Supreme Court Petitions 4, 3 & 5 of 2013, the Supreme Court expunged from the record such affidavits which were put in as annexures of the petitioner’s affidavit. It stated: The Petitioner has used an unusual way of availing the affidavits as annexures or evidence as there were various further affidavits filed through the affidavit in reply which were not independent affidavits filed to stand on their own evidence in the particular proceedings. Such affidavits evaded payment of the filing fees and their probative value was questionable. The affidavits and the supporting affidavit of the petitioner are not commissioned. The affidavits are thereby struck out and expunged from the record. 5.5. Service of Election Petitions 5.5.1. The time of declaration of presidential election results is the operative moment in the exercise of the Supreme Court’s jurisdiction over a presidential election petition (Isaac Aluoch Polo Aluochier v IEBC & 19 Others, Supreme Court Petition No. 2 of 2013). The Supreme Court has no jurisdiction, therefore, to entertain an election petition filed before the declaration of the results of the presidential election (Isaac Aluoch Polo Aluochier v IEBC & 19 Others, Supreme Court Petition No. 2 of 2013). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION