Peter Agweli Onalo v Eliakim Ludeki & 2 others [2005] KECA 34 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an MP who dodges delivery of an election petition can't use that evasion to get the challenge thrown out.
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 2nd respondent was validly and personally served with the election petition and accompanying documents within the period prescribed by section 20(1)(a) of Cap. 7
Key legal issues
#Whether the 2nd respondent was personally served with the petition on 9th January 2003 at Dambusters Restaurant
Yes. The affidavits of three deponents, including an advocate of the High Court, were consistent, the 2nd respondent did not deny ownership of the damaged vehicle, and the Hansard alibi did not exclude the possibility that he left the National Assembly; the learned Judge's contrary conclusion was against the evidence on record.
The court, as a first appellate court, re-evaluated the affidavit evidence. Three witnesses deponed to personal service at Dambusters Restaurant at about 5:45 p.m., with the 2nd respondent driving off and damaging his vehicle. The 2nd respondent relied only on Hansard showing attendance in Parliament, but Hansard did not show that members remained seated until adjournment at 6:20 p.m. The judge himself accepted it was possible the 2nd respondent had left for the restaurant. The alibi was therefore displaced by affidavit evidence the court believed.
Whether the 2nd respondent was served on 31st January 2003 by the process server Musili
Yes. The process server's affidavit that he served the 2nd respondent at his residence, Flat No. 4 Nairobi West-Gandhi Road, remained unchallenged; the 2nd respondent made only a bare denial and never denied residing there or being there on that date.
The court noted that unchallenged affidavit evidence stands. The 2nd respondent did not comment on the details of Musili's affidavit, did not deny that Flat No. 4 was his residence, and did not claim to have been elsewhere on 31st January 2003. The two watchmen confirmed his residence at that address. In these circumstances the affidavit established service within the prescribed period.
Whether a respondent who evades service can rely on that evasion to strike out a petition
No. Following Abu Chiaba Mohammed v Mohamed Bwana Bakari, a person cannot rely on his own wrong (successfully hiding from process servers) to defeat an otherwise valid claim; where efforts to serve amount to personal service, or where actual personal service occurs, striking out for want of service is not justified.
The court adopted Omolo JA's reasoning in Abu Chiaba: no man may rely on his own wrong to defeat another's valid claim. A sitting MP who makes himself unavailable for service cannot then ask the court to strike out the petition for want of personal service. The court observed this case was even stronger than Abu Chiaba because the 2nd respondent was actually personally served, and called for legislative action, noting a published Bill to streamline service of election petitions.
The learned Judge's criticisms of the advocate Bw'omote's affidavit for omissions
The court rejected the Judge's reasoning in faulting the affidavit merely because it omitted mention of Mr. Echali and the gate incident; the Judge had not declared Bw'omote a liar.
The court held that the absence of collateral details from an affidavit is not a proper basis to disbelieve it, particularly where there were no contradictions among the three deponents. The Judge's reasoning that the advocate's failure to mention Echali and the injury undermined service was, with respect, unsound, and did not justify finding that personal service had not occurred.
Legal principles established
#- On a first appeal, the appellate court must reconsider and reassess the evidence and draw its own conclusions.
- A person who evades attempts at personal service of an election petition cannot rely on that evasion to defeat the petition; diligent efforts to effect personal service amount to personal service.
- Following the 1997 amendments to section 20 of the National Assembly and Presidential Elections Act, the best way of serving an election petition is by personal service.
Court orders
#- 1.The appeal is allowed
- 2.The ruling of Waweru J dated 7th August 2003 is set aside and substituted with an order dismissing the 2nd respondent's notice of motion seeking striking out of the appellant's petition
- 3.The appellant is awarded costs of the appeal and costs in the superior court
- 4.Election Petition No. 1 of 2003 may now be set down for hearing in the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C. Election Petition No. 1 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal under the National Assembly and Presidential Elections Act framework (Cap. 7); the judgment does not cite a specific appellate provision
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 view of the foregoing, this appeal is allowed and the ruling of the learned Judge dated 7th August, 2003 set aside and substituted with an order dismissing the respondent’s notice of motion seeking the striking out of the appellant’s petition.
he cannot be allowed to take advantage of his own wrong in hiding from those wanting to serve him and defeat the claim of the 1st Respondent on that basis
This being a first appeal, and as we were reminded by the appellant’s counsel, it is our duty to reconsider the evidence, assess it and make appropriate conclusions of our own about it
it is our conclusion that the 2nd respondent was personally served on 9th January, 2003 and the learned Judge’s conclusion was contrary to the evidence on record
The appellant will have the costs of this appeal and costs in the superior court. The Election Petition No. 1 of 2003 may now be set down for hearing in the superior court.
Issues in the judgment
#The judgment refers to 'four different affidavits of service sworn by different persons' but then lists six deponents (Kennedy Kenaza/Keriaza Bw'omote, Benjamin Musembi Musili, Alexander James Ndegwa, Paul Otieno Ado, Phydhelis Owesi Anyona, Reuben Mangala Echali), and elsewhere refers to 'four different affidavits' again while discussing three deponents for 9th January 2003.
The process server's name is rendered inconsistently as 'Benjamin Musembi Musili' and 'Benjamin Musombi Musilli' in different passages.
The deponent's name appears as 'Kennedy Kenaza Bw’omote' in one passage and 'Kennedy Keriaza Bw’omote' in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Agweli Onalo v Eliakim Ludeki & 2 others [2005] KECA 34 (KLR)", Case Analysis (2005). Civil Appeal No. 215 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/34/eng@2005-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.