106 6 Others v Kenya Anti-Corruption Commission, Nairobi Constitutional Petition 615 of 2008). Furthermore, the supporting affidavit must be filed contemporaneously with the petition, to allow the respondent(s) to be aware of the case against them and the requisite time to respond. Where substitution is allowed, the substituted petitioner stands in the same position as the original petitioner, and may be allowed to file supplementary affidavits, so long as he/she does not raise new issues, as this would advance a new case which would be different from the original petitioner’s case and hamper resolution of the petition within the constitutional timelines (Bernard Kibor Kitur v Alfred Kiptoo Keter & Another, Supreme Court Petition No. 27 of 2018). 4.3.4 A witness who fails to file an affidavit as required under Rules 12(8) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, will not be allowed to give evidence without leave of the court. The court will not usually grant such leave unless the party in default offers sufficient reasons for the failure to file a witness affidavit as required under the rules. 4.3.5 Once filed, the affidavits form part of the record of the election court and become the deposing witnesses’ respective evidence for purposes of examination-in-chief (Nuh Nassir Abdi v Ali Wario & 2 Others, Mombasa Election Petition No. 6 of 2013). A witness who swears an affidavit is liable to be cross-examined by the adversary of the party who calls him/her as a witness and any other party to the election petition, and may be re-examined by the party who calls him/her as a witness. 4.3.6 Although affidavits are not usually deemed to be pleadings, the affidavit in support of an election petition and any documents annexed thereto are deemed to be part of the petition and, therefore, part of the pleadings in the case (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014; and Ferdinand Ndung’u Waititu v IEBC & 8 Others, Nairobi Election Petition No. 1 of 2013). 4.3.7 Accordingly, it is erroneous for an election court to refuse to consider the contents of the affidavit in support of an election petition, or documents annexed to such an affidavit, on the ground that they do not form part of the pleadings (Dickson Mwenda Kithinji v Gatirau Peter Munya & 2 Others, Nyeri Civil Appeal No. 38 of 2013). Although there is no clear authority on the point, this rule presumably extends to the respondent’s affidavit, with the result that the respondent’s affidavit and any documents annexed thereto form part of the response to the election petition. 4.3.8 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 & 3 Others v IEBC & 4 Others, Supreme Court Petitions 5, 3 and 4 of 2013, the Supreme Court expunged from 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. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION