Kibaki v Moi & 2 others (Civil Appeal 172 & 173 of 1999 (Consolidated)) [1999] KECA 158 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Mwai Kibaki's challenge to the 1997 presidential election petition's striking out, ruling election petitions must be personally served within 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 erred by refusing to follow the pronouncements in Chelaite and Murathe that section 20(1)(a) of the Act is not in conflict with Rule 14 of the Rules, contrary to the doctrine of stare decisis
- 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
- 3.What mode of service of an election petition filed under section 20(1)(a) of the Act is required, given that the section prescribes no mode of service
- 4.Whether service by publication in the Kenya Gazette constituted proper service of the petition on the respondents
- 5.Whether the 2nd and 3rd Respondents' application to strike out the petition, having previously taken a contrary position on the law, amounted to an abuse of the process of the court
Key legal issues
#Whether the High Court violated the doctrine of stare decisis by declining to follow the pronouncements in Chelaite and Murathe that section 20(1)(a) is not in conflict with Rule 14
No. The pronouncements on the conflict were not necessary to the decisions in those cases and amounted only to judicial dicta, which do not bind the High Court.
In Chelaite and Murathe the petitions were struck out because they were served outside the 28-day period prescribed by section 20(1)(a). Whether section 20(1)(a) conflicted with Rule 14 was never raised in the High Court in either case and was irrelevant to the outcome. Applying Halsbury's exposition of ratio decidendi, only the general principle that service outside 28 days renders a petition incompetent bound the courts below; the statements on the conflict were judicial dicta with, at most, persuasive efficacy. The issue was therefore still open to the High Court.
Whether section 20(1)(a) of the Act is in irreconcilable conflict with Rule 14 of the Rules
Yes. Section 20(1)(a) requires presentation and service within 28 days; Rule 14 allows service within 10 days of presentation, which could extend service beyond 28 days. The rule must give way to the plain words of the section.
If Rule 14 were given its full application, a petitioner lodging a petition on the 20th day would have until the 30th day to serve, which would be bad service under the Act. Reconciling the two would require modifying the rule, which a court cannot do. Following the principle in Maitha that rules cannot contradict the statute from which they derive their authority, the Court held the provisions irreconcilable and Rule 14 inapplicable to section 20(1)(a) petitions. The Gazette publication mode in Rule 14(2) also showed the conflict, since it did not constitute service at all.
What mode of service of an election petition under section 20(1)(a) is required
Only personal service will suffice. Parliament has not dispensed with personal service, and courts must insist on the best form of service.
Section 20(1)(a) prescribes what is to be served (the petition) and when (within 28 days) but not how. 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. Gazette publication merely invites the respondent to collect a copy, which is not service. Election petitions are disputes in rem of great public importance, so unless Parliament has specifically dispensed with personal service, the courts must insist on it. The Court acknowledged this may be unjust but courts must enforce the law as decreed by Parliament.
Whether the 2nd and 3rd Respondents' shifting position on the law amounted to an abuse of process
No, although good practice requires a party changing a previously argued position to disclose the change and the reasons for it.
The Electoral Commission and its Chairman must remain impartial in election matters, but when sued they become parties and, under the adversarial system, are entitled to make whatever submissions they like in defence of their interest. Because the High Court was aware of the respondents' previous contrary position, they could not be accused of misleading the court. The Court nonetheless deprecated the failure to explain the change of stance.
Legal principles established
#- The High Court has no power to over-rule the Court of Appeal and must follow its decisions unless they can be distinguished on some other principle such as obiter dictum.
- Only the ratio decidendi of a precedent binds; statements not necessary to the decision, whether obiter dicta or judicial dicta, have no binding authority on another court.
- Section 20(1)(a) of the National Assembly and Presidential Elections Act is in direct conflict with Rule 14 of the Election Petition Rules, and Rule 14 can no longer apply to petitions filed under section 20(1)(a).
- Where a statute requires an election petition to be served but prescribes no mode of service, only personal service will suffice; service by publication in the Kenya Gazette directing a respondent to collect a copy is not proper service.
- Rules made under an Act cannot repeal or contradict the express provisions of the Act; where an Act subsequently passed is inconsistent with the rules, the Act prevails.
Court orders
#- 1.Civil Appeal No. 172 of 1999 is dismissed with costs certified for two counsel
- 2.Civil Appeal No. 173 of 1999 is dismissed with no order as to the costs thereof
- 3.The order for costs awarded to the 2nd and 3rd Respondents in the High Court is set aside, with the result that there will be no costs to the 2nd and 3rd Respondents both in the Court of Appeal and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Election Petition No. 1 of 1998
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over interlocutory decisions of an election court (the judgment records that an appeal lies to the Court of Appeal from any decision of an election court, whether interlocutory or final); no specific constitutional article is invoked in the judgment.
- Consolidated with
- Civil Appeal No. 173 of 1999
Relief refused
#The Appellant's appeal against the striking out of his election petition
The Court agreed with the High Court that section 20(1)(a) of the Act is in direct conflict with Rule 14, that Rule 14 must give way, and that only personal service suffices; the Gazette publication was not proper service.
The Appellant's complaint that the 2nd and 3rd Respondents' application amounted to an abuse of the process of the court
As parties defending allegations against them, they were entitled to make whatever submissions they liked; their failure to explain their earlier contrary stand was criticised but did not amount to 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 either in the Court of Appeal or 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 confiict with Rule 14 and that being so Rule 14 must give way to the plain words of section 20 (1) (a) of the Act.
Service by way of publication in the Kenya Gazette, in view of section 20 (1) (a) of the Act , cannot be proper service.
We agree that the pronouncements made in the two cases to the efiect that section 20 (1) (a) is not in confiict with Rule 14 amounted to no more than "judicial dicta" and were not binding on the High Court.
election petitions are of such importance to the parties concerned and to the general public that unless Parliament has itself specifically dispensed with the need for personal service, then the courts must insist on such service.
Issues in the judgment
#The judgment refers to the same respondent's case with two slightly different names - 'David Kairu Murathe' and 'David Wakairu Murathe' - for what appears to be the same litigant in Civil Appeal No. 171 of 1998.
The judgment quotes Gicheru, JA in Maitha as referring to section 23 (4) of the Act in one passage and section 23 (5) in another when describing the 30-day appeal period.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibaki v Moi & 2 others (Civil Appeal 172 & 173 of 1999 (Consolidated)) [1999] KECA 158 (KLR)", Case Analysis (1999). Civil Appeals Nos. 172 and 173 of 1999 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/158/eng@1999-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.