circumstances change, it remains unchanged.51 In this case therefore, it is
common ground that it is the petitioners who bear the burden of proving to
the required standard that, on account of non-conformity with the law or
on the basis of commission of irregularities which affected the result of this
election, the 3rd respondent’s election as President of Kenya should be
nullified.
[132] Though the legal and evidential burden of establishing the facts and
contentions which will support a party’s case is static and “remains
constant throughout a trial52 with the plaintiff, however, “depending on the
effectiveness with which he or she discharges this, the evidential burden
keeps shifting”53 and “its position at any time is determined by answering
the question as to who would lose if no further evidence were
introduced.”54
[133] It follows therefore that once the Court is satisfied that the petitioner
has adduced sufficient evidence to warrant impugning an election, if not
controverted, then the evidentiary burden shifts to the respondent, in most
cases the electoral body, to adduce evidence rebutting that assertion and
demonstrating that there was compliance with the law or, if the ground is
one of irregularities, that they did not affect the results of the election. In
other words, while the petitioner bears an evidentiary burden to adduce
‘factual’ evidence to prove his/her allegations of breach, then the burden
shifts and it behoves the respondent to adduce evidence to prove
51 Auburn J, ‘Burden of Proof’ in Malik H (ed), Phipson on Evidence, 17th (ed), Sweet and Maxwell,
London, 2010, Pg 149–151.
52 Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13.
53 Raila Odinga and Others v. Ahmed Issack Hassan and Others, Petition No. 5 of 2013, par. [195].
54 Charles Frederic, Joyce Chamberlayne, Howard C: ‘The modern Law of Evidence’ (1911-1916 V. II Para
937 (Heinoline).
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