(c)
The adavits of Celestine Anyango Opiyo and Arnold Ochieng Oginga, while containing
sensational information, were not credible as the Registrar’s Report conrmed that all the
Forms 34A attached to those adavits and purportedly given to them by agents at select
polling stations were signicantly dierent from the originals, certied copies and those on
the Public Portal. The purported evidence of Celestine Opiyo and Arnold Oginga sworn in
their respective adavits was not only inadmissible, but are also unacceptable. It has been
established that none of the agents on whose behalf the forms were being presented swore
any adavit; that there is nothing to show that they had instructed both Celestine Opiyo and
Arnold Oginga to act for them. Yet the two have gone ahead to depone on matters that are not
within their knowledge.
(d)
This court cannot countenance this type of conduct on the part of counsel who are ocers of
the court. Though it is elementary learning, it bears repeating that adavits led in court must
deal only with facts which a deponent can prove of his own knowledge and as a general rule,
counsel are not permitted to swear adavits on behalf of their clients in contentious matters,
like the one before us, because they run the risk of unknowingly swearing to falsehoods and
may also be liable to cross-examination to prove the matters deponed. We must remind counsel
who appear before this court, or indeed before any other court, or tribunal of the provisions of
Sections 113 and 114 of the Penal Code, that swearing to falsehoods is a criminal oence, and
too that it is an oence to present misleading or fabricated evidence in any judicial proceedings.
(e)
Section 114 of the Penal Code states that:
“ Any person who swears falsely or makes a false armation or declaration before
any person authorised to administer an oath or a declaration upon a matter of
public concern, and at such circumstances that the false swearing or declaration if
committed in a judicial proceeding would have amounted to perjury, is guilty of a
misdemeanour.”
One of the most serious losses an advocate may ever suer is the loss of trust of Judges for a
long time. Such conduct amounts to interference with the proper administration of justice.
(f)
The contents of the adavit of John Mark Githongo, which may contain forgeries, are
dismissed for not meeting the evidential threshold.They contained no more than incredible
and hearsay evidence. No admissible evidence was presented to prove the allegation that Forms
34A were fraudulently altered by a group situated in Karen under the direction of persons
named in the adavit and video clip attached to it. In fact, his two adavits amount to double
hearsay, and incapable of being proved at each layer.
(g)
We turn to Form 34A for Gacharaigu Primary School which was sensationally presented by
Julie Soweto, Advocate, to show that one, Jose Carmago, accessed the RTS and interfered with
the result contained therein turned out to be no more than hot air and we were taken on wild
goose chase that yielded nothing of probative value.
(h)
The KIEMS kit relating to Psongoywo Primary School which bore the same serial number with
another was admitted by IEBC as an inadvertent manufacturer’s error. We are also satised
that the two kits had other identifying features that were markedly dierent including the time
stamps and polling code. Nothing turns on that anomaly.
kenyalaw.org/caselaw/cases/view/240578/
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