Kibaki v Moi [1999] KECA 1 (KLR)
The bottom line
#Kenya's Court of Appeal struck out Kibaki's 1997 presidential election petition because it was never personally served on Moi within the required 28 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court was bound by the Court of Appeal's pronouncements in Chelaite and Murathe that section 20(1)(a) of the Act is not in conflict with Rule 14 of the Rules, or whether those pronouncements were obiter dicta
- 2.Whether section 20(1)(a) of the National Assembly and Presidential Elections Act is in irreconcilable conflict with Rule 14 of the National Assembly Elections (Election Petition) Rules, and if so which prevails
- 3.What mode of service of an election petition filed under section 20(1)(a) of the Act is required, and whether service by publication in the Kenya Gazette is proper service
- 4.Whether the 2nd and 3rd respondents' application to strike out the petition, having previously taken a contrary position in other cases, amounted to an abuse of the process of the court
Key legal issues
#Stare decisis and the scope of binding precedent
The High Court was not bound by the Court of Appeal's statements in Chelaite and Murathe that section 20(1)(a) was not in conflict with Rule 14, because those statements were not necessary to the decisions and were mere judicial dicta.
Applying Halsbury's exposition of ratio decidendi, the Court held that only the general principle upon which a case is decided binds. In Chelaite and Murathe the petitions were struck out for service outside the 28-day period; whether the Act conflicted with Rule 14 never arose and was irrelevant to those decisions. The High Court therefore rightly treated the conflict pronouncements as obiter and was free to decide the question afresh. Grounds one to ten of the appeal accordingly failed.
Conflict between section 20(1)(a) of the Act and Rule 14 of the Rules
Section 20(1)(a) and Rule 14 are in direct conflict; the statutory provision prevails and Rule 14 can no longer apply to petitions under section 20(1)(a).
Section 20(1)(a), as amended in 1997, requires presentation and service within 28 days of Gazette publication. Rule 14 allows ten days from presentation for service, which could extend service beyond the 28-day statutory limit. Reconciliation would require a court to modify the rule, which no court may do. Following the approach in Maitha, where the Court of Appeal Rules gave way to section 23(4) of the Act, the plain words of the statute prevail over subsidiary legislation.
Mode of service of an election petition
Since section 20(1)(a) prescribes no mode of service, the courts must insist on personal service, the best form of service; Gazette publication directing a respondent to collect a copy from the Registry is not proper service.
The Act and Rules form a complete regime for election petitions. Rule 10 does not compel an elected person to leave an address, and the 2nd and 3rd respondents, not being elected persons, could not avail themselves of Rule 10. Parliament has not dispensed with personal service; even Rule 14(2) offered alternative modes only as alternatives to personal service. Election petitions are disputes of great public importance and personal service must be required.
Impartiality of the Electoral Commission and abuse of process
The Electoral Commission and its Chairman must remain impartial, but when sued they become parties entitled to make whatever submissions they choose; their failure to explain a change of position was not an abuse of process, though good practice requires disclosure of a previous contrary stand.
The Court affirmed the Commission's constitutional duty of impartiality but held that the adversarial system entitles a party to advance any submission and leave the decision to the judge. Since the High Court was aware of the respondents' previous contrary positions and did not decide the issue, the respondents could not be accused of misleading the court. The Court nonetheless signalled its expectation of candour when a party changes position.
Legal principles established
#- A High Court is bound only by the ratio decidendi of Court of Appeal decisions; pronouncements on points not necessary to the decision are judicial dicta and do not bind it.
- Where subsidiary legislation conflicts with the plain words of a statute, the rule must give way to the statute.
- An election petition under section 20(1)(a) must be personally served within 28 days of publication of the election result; service by Gazette publication is not proper service.
- Courts must enforce Parliament's decree on service of election petitions however harsh it may seem, unless it offends the Constitution.
Court orders
#- 1.Civil Appeal No. 172 of 1999 dismissed with costs certified for two counsel
- 2.Civil Appeal No. 173 of 1999 dismissed with no order as to costs
- 3.The order for costs awarded to the 2nd and 3rd respondents in the High Court set aside, with the result that there are no costs to the 2nd and 3rd respondents either in the Court of Appeal or in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 1 of 1998
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under section 23(4) of the National Assembly and Presidential Elections Act (Cap 7), the petition having been brought under section 44 of the Constitution
- Consolidated with
- Civil Appeal No. 173 of 1999
Relief refused
#The appellant's appeal against the striking out of Election Petition No. 1 of 1998
The Court agreed with the High Court that section 20(1)(a) of the Act prevails over Rule 14 and that only personal service within 28 days suffices; the Gazette publication was not proper service
The appellant's complaint that the 2nd and 3rd respondents were abusing the process of the court by taking inconsistent positions
As parties to the suit they were entitled to make whatever submissions they liked, and their failure to explain the change of position did not amount to an abuse of process
Costs
Civil Appeal No. 172 of 1999 dismissed with costs certified for two counsel; Civil Appeal No. 173 of 1999 dismissed with no order as to costs; the order for costs awarded to the 2nd and 3rd respondents in the High Court set aside, so that there are no costs to the 2nd and 3rd respondents both here and in the High Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the event, our final order in Civil Appeal No. 172 of 1999 is and shall be that the appeal is dismissed with costs certified for two counsel.
The order which accordingly commends itself to us is that Civil Appeal No. 173 of 1999 be dismissed but with no order as to the costs thereof.
We accordingly agree with the High Court that section 20 (1) (a) of the Act is in direct conflict with Rule 14 and that being so Rule 14 must give way to the plain words of section 20(1) (a) of the Act.
We agree that the pronouncements made in the two cases to the effect that section 20 (1) (a) is not in conflict with Rule 14 amounted to no more than "judicial dicta" and were not binding on the High Court.
Service by way of publication in the Kenya Gazette, in view of section 20 (1) (a) of the Act, cannot be proper service.
Section 20 (1) (a) of the Act does not prescribed any mode of service and in those circumstances, the courts must go for the best form of service which is personal service.
Issues in the judgment
#The judgment refers to the same Court of Appeal decision inconsistently as 'David Kairu Murathe' and 'David Wakairu Murathe v Samuel Kamau Macharia', and the name of the appellant's advocate is rendered inconsistently ('Mr Nowrojee'/'Pheroze Nowrojee'); the text also contains typographical corruption (e.g. 'Hh-4-h Court', 'terra rosa' for 'terra incognita').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibaki v Moi [1999] KECA 1 (KLR)", Case Analysis (1999). Civil Appeal No. 172 of 1999 (consolidated with Civil Appeal No. 173 of 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/1/eng@1999-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.