Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal 215 of 2003

Peter Leo Agweli Onalo v Eliakim Ludeki, Bitta Sauti Raphael Wanjala & Electoral Commission of Kenya

Court of Appeal of Kenya
16 December 2005
3,450 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that deliberately hiding from a process server cannot save an MP from an election petition challenging their seat.

What this practically means

#

Executive summary

#
The Court of Appeal allowed the appellant's appeal against a High Court ruling (Waweru J, 7th August 2003) striking out his election petition challenging the election of Bitta Sauti Raphael Wanjala as MP for Budalangi Constituency. The Judge had struck out the petition on the ground that there was no personal service on the 2nd respondent within the 28-day period prescribed by section 20(1)(a) of the National Assembly and Presidential Elections Act, while dismissing similar applications by the 1st and 3rd respondents. The Court, exercising its duty as a first appellate court to re-evaluate the evidence, found three consistent and uncontradicted affidavits (including one by an advocate of the High Court) establishing personal service at Dambusters Restaurant on 9th January 2003, corroborated by photographs of damage to the 2nd respondent's vehicle; his Hansard-based alibi did not exclude his leaving Parliament at about 5:00 p.m. Service by process server Musili on 31st January 2003 also stood unchallenged. The Court faulted the Judge for disbelieving the advocate's affidavit merely for omitting corroborating details. Following Mwai Kibaki v. Moi and applying Abu Chiaba Mohammed v. Bwana Bakari, the Court held the ruling could not stand, set it aside, substituted an order dismissing the 2nd respondent's striking-out motion, awarded the appellant costs of the appeal and in the superior court, and directed that the petition be set down for hearing.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd respondent was validly served with the election petition within the period prescribed by section 20(1)(a) of Cap. 7
  2. 2.Whether the learned Judge's conclusion that there was no personal service was contrary to the affidavit evidence on record

Key legal issues

#
01

Personal service of election petition on 9th January 2003

Holding

The 2nd respondent was personally served at Dambusters Restaurant on 9th January 2003; the Judge's contrary conclusion was against the evidence.

Reasoning

Three deponents, including an advocate of the High Court, gave consistent uncontradicted affidavit evidence of service. The 2nd respondent's Hansard alibi did not exclude his leaving the National Assembly at about 5:00 p.m., and the Judge himself accepted that possibility. The damaged vehicle photographs, which he did not deny owning, corroborated the service narrative.

p. 5
02

Personal service on 31st January 2003

Holding

Service by the process server Musili on 31st January 2003 stood unchallenged and was valid.

Reasoning

The 2nd respondent made only a bare denial, never disputing that Flat No. 4, Nairobi West Gandhi Road was his residence or that he was there on 31st January 2003. Unchallenged affidavit evidence of a court process server, corroborated by watchmen, established acceptance of service without signature.

p. 4
03

Faulting an affidavit for omissions

Holding

The Judge erred in disbelieving the advocate's affidavit merely because it omitted mention of Mr. Echali and the gate incident.

Reasoning

The Court held there were no contradictions among the three deponents, and the Judge did not declare the advocate a liar. Discrediting an affidavit for non-mention of corroborating details, absent contradiction, was an erroneous approach to affidavit evidence.

p. 4

Legal principles established

#
  • A first appellate court must reconsider the evidence, assess it and make its own conclusions.
  • A respondent cannot rely on evading personal service of an election petition to defeat it; deliberate evasion amounts to personal service.

Court orders

#
  1. 1.Appeal allowed
  2. 2.Ruling of the learned Judge dated 7th August 2003 set aside and substituted with an order dismissing the 2nd respondent's notice of motion seeking striking out of the petition
  3. 3.Appellant awarded costs of the appeal and costs in the superior court
  4. 4.Election Petition No. 1 of 2003 to be set down for hearing in the superior court

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C. Election Petition No. 1 of 2003
Jurisdiction invoked
First appeal under the National Assembly and Presidential Elections Act (Cap. 7) and the Election Offences Act (Cap. 66)

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.

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
p. 6Final orders - disposition
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.
p. 6Costs and remittal for hearing
it is our duty to reconsider the evidence, assess it and make appropriate conclusions of our own about it
p. 5Duty of first appellate court
the alibi put forward was displaced by the affidavit evidence which we believe
p. 4Alibi displaced by affidavit evidence

Issues in the judgment

#
minor

Judgment alternately states four and six affidavits of service were on record

minor

Deponent names inconsistently spelled within the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Leo Agweli Onalo v Eliakim Ludeki, Bitta Sauti Raphael Wanjala & Electoral Commission of Kenya", Case Analysis (2005). Civil Appeal 215 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/351/eng@2005-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.