Joho also wants the court to strike out an affidavit by Mr Omar’s running mate, Ms Linda Shuma.
Mombasa Governor Hassan Ali Joho wants all exhibits filed by former senator Hassan Omar and his witnesses expunged from court records for non-compliance with rules.
Through his lawyer Mohamed Balala, Mr Joho also wants the affidavit of Mr Omar, who is challenging his election, struck out and his evidence disregarded because “it is hearsay”.
“Witnesses are reminded that they should give evidence in their knowledge. He (Mr Omar) has [made] serious allegations such as bribery [which] he says he was told,” said Mr Balala.
Mr Balala told Justice Lydia Achode that Mr Omar’s affidavit has no “evidential value” and cannot be subjected to re-examination.
“Other than the analysis he carried out, everything else is hearsay. I urge that it (affidavit) be struck out from the record,” said Mr Balala, adding that affidavits are restricted to matters of personal knowledge.
Mr Balala also urged the court to also strike out an affidavit by Mr Omar’s running mate, Ms Linda Shuma.
He said she (Ms Shuma) has no knowledge of anything in her testimony despite stating in the affidavit that it is based on her knowledge.
Lawyer Dennis Mosota, also representing Mr Joho, told the court that the objection they raised is substantive and cannot be argued at the pre-trial stage.
However, through his lawyer Yusuf Aboubakar, Mr Omar termed the objection by Mr Joho as based on misinterpretation of law and a desperate attempt not to go to the merits of the petition.
Mr Aboubakar argued that the objection by Mr Joho should have been made at the pre-trial stage of the petition.
“On that basis, the objection raised has violated the Election Act and the Constitution,” said Mr Aboubakar, adding that the objections are not merited.
Mr Aboubakar said Mr Joho was being hypocritical to raise the objection at the current stage of the petition while he had an opportunity to do so before the case begun.
He added that forms 37A are public documents which are admissible in court and that there are no allegations that they have been tampered with.
“In a case before you where a petitioner has been cross-examined, the objection is not merited and is intended to subvert justice,” Mr Aboubakar told the court.
Through lawyer Paul Nyamodi, the Independent Electoral and Boundaries Commission supported the objection by Governor Joho.
In their petition, Mr Omar and Ms Linda Shuma want the court to declare that there were massive irregularities in the conduct of election of Mombasa governor.
They argue that the petition is grounded on violations of the provisions of the Constitution, statutes and regulations relating to the conduct of elections.
The petitioners also want the court to declare that non-compliance, irregularities and improprieties in the election for governor were substantial, significant and affected the results.
Upon the results of the scrutiny and recount of votes as they seek, Mr Omar and Ms Shuma want the court to order IEBC to organise and conduct a fresh election for governor in strict compliance with the provisions of the Constitution and the Elections Act.