128 would have the effect of the other party seeking time to consult, seek instructions and prepare for rebuttal of the new evidence thereby derailing the proceedings. In my view this is what the electoral law is trying to address. 4.8.1.4 The Elections (Parliamentary and County Elections) Petitions Rules, 2017 (and their predecessors) do not in any way limit section 146(2) of the Evidence Act on the scope of cross-examination in EDR (Ferdinand Ndung’u Waititu v IEBC & 8 Others, Nairobi Civil Appeal No. 324 of 2013). It is a serious misdirection, therefore, for an election court to restrict the scope of cross-examination to the matters set out in the witness affidavits (Dickson Mwenda Kithinji v Gatirau Peter Munya & 2 Others, Nyeri Civil Appeal No. 38 of 2013; and Ferdinand Ndung’u Waititu v IEBC & 8 Others, Nairobi Civil Appeal No. 324 of 2013). Moreover, an election court that unreasonably curtails a litigant’s right of cross-examination might open itself to the charge of bias or breach of the right to a fair trial. In Ferdinand Ndung’u Waititu v IEBC & 8 Others, Nairobi Civil Appeal No. 324 of 2013, the Court of Appeal explained the scope of cross-examination in EDR as follows: the learned Judge fell into and proceeded on the basis of the rather elementary error that cross examination should be confined to matters that arose in examinationin-chief which in this case is the evidence deposed to in the witness affidavits. This cannot be correct. The law, as I perceive it, is that so long as a matter is relevant and admissible, a question can be led on it in cross- examination. Indeed, I would offer that the potency and genius of cross examination lies in the ability to bring up truths that the witness may have carefully tried to shield from view by a sanitized form of deposition or examination-in-chief. This is the true meaning and intent of section 146 (2) of the Evidence Act, Cap 80 and, with tremendous respect to the learned Judge, he had absolutely no basis for concluding that the wide scope the provision portends has no application or needs to be constricted in election petitions. There is no constitutional, statutory or practical basis for such a view and I hold that the learned Judge misdirected himself to the extent that cross-examination in electoral disputes should be any less potent or important than in any other proceedings. 4.8.1.5 Rule 11(8) of the Elections (Parliamentary and County Elections) Petition Rules, 2017, however prohibits a party that has failed to file a response from participating in proceedings. The Supreme Court, in the case of Christopher Odhiambo Karan v David Ouma Ochieng & 2 Others, Supreme Court Petition 36 of 2018, held that a person, who had been disallowed, by the election court from participating in the proceedings for failing to file a response, cannot claim violation of their right to fair trial. The Supreme Court ruled as follows: From the foregoing analysis, it is evident that cross-examination plays an important role in a party’s right to fair hearing. However, in the present case, the trial Court, in its ruling delivered on 21st November, 2017, disallowed the Appellant from participating in the hearing of the petition on the basis of Section 11(8) of the Election Petition Rules, which is coached in the following terms: “A respondent who has not filed a response to a petition as required under this rule shall not be allowed to appear or act as a party in the proceedings.” … We have already discussed the legal effect of Rules 11(1) and 11(8) of the Election Petition Rules 2017 in disposition of election petitions that they have the same impact as the parent Act which originates from Article 87 of the Constitution. Article 50(2) of the Constitution on the right to challenge evidence through cross-examination does not operate in a vacuum, it operates with other laws to give the greatest effect. We note in that context that the superior courts were aware of the Constitution provisions under Article, 20(3), 25(c) and 50 before arriving at their decision. We see no reason for faulting their interpretation and application of the Constitution in this petition. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION