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Court of AppealDismissedCivil Appeal No 6 of 2004· [2007] KECA 36 (KLR)

Kagunyi v Gathua & another (No 3) (2008) 3 KLR (EP) 1 [2007] KECA 36 (KLR)

Court of Appeal of Kenya
28 September 2007
Philip Kiptoo TunoiTunoiO'O'KubasuOOOnyango Otieno
3,508 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed an election petition fails if the politician isn't personally served, and handing papers to any other lawyer doesn't count.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against a ruling of Mwera J (High Court, 23 December 2003) striking out the appellant's election petition challenging the election of Hon James Viscount Kimathi as MP for Lari Constituency in the December 2002 General Election. The 2nd respondent had moved to strike out the petition on the ground that it was not personally served on him within 28 days of the publication of the results in the Kenya Gazette, as required by section 20 of the National Assembly and Presidential Elections Act (cap 7). The appellant's process server, Anthony Njuguna Kibe, testified that he handed the petition to the 2nd respondent, who led him to the offices of Ngatia & Associates, where Mr Ngatia acknowledged service. The 2nd respondent denied the encounter, and Ngatia's clerk swore that the documents were left by a stranger he took for Mr Kimathi's driver. The High Court found that Mr Ngatia had not been appointed by the 2nd respondent to act for him in the petition and that the appointment had not been notified to the Registrar, so service was invalid, and struck out the petition. The Court of Appeal, per a single judgment of Tunoi, O'Kubasu and Onyango Otieno JJA, affirmed. It reaffirmed that personal service of election petitions is mandatory unless Parliament has dispensed with it, that service on an advocate not appointed and notified to the Registrar is invalid, and that an appellate court will not disturb findings of fact absent no evidence, misapprehension, or demonstrably wrong principles. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Validity of service of an election petition on a respondent's alleged advocate

Holding

Service on Mr Ngatia was invalid because at the time of service the 2nd respondent had not appointed Mr Ngatia as his advocate in the petition nor notified such appointment to the Registrar; the acknowledgment by Mr Ngatia's office was likewise of no validity.

Reasoning

Section 20 of the National Assembly and Presidential Elections Act requires personal service within 28 days. Service on an advocate is valid only if that advocate has been appointed for the petition and the appointment notified to the Registrar. Kibe conceded he did not know whether Mr Ngatia had been so appointed and did not check with the Registrar. Since the appointment was neither made nor notified, neither the purported service nor the acknowledgment had any validity.

p. 2
02

Primacy of personal service in election petitions

Holding

Personal service of an election petition is mandatory unless Parliament has specifically dispensed with it; the other modes of service are only alternatives to personal service.

Reasoning

Adopting the Court's earlier decision in Mwai Kibaki v Daniel arap Moi, the court held that because election petitions are of importance to the parties and the public, courts must insist on personal service. Neither section 20(1)(a) of the Act nor rule 14(2) of the Rules dispensed with personal service; alternative modes supplement, not replace, it.

p. 6
03

Appellate interference with findings of fact

Holding

A first appellate court must reconsider the evidence afresh but will not normally interfere with a trial court's findings of fact unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles.

Reasoning

Relying on Peters v Sunday Post, Selle v Associated Motor Boat Co and Mwangi v Wambugu, the Court reaffirmed the classic standard for interference with factual findings on a first appeal. Applying it, the Court found no basis to disturb Mwera J's finding that there was no valid service.

p. 6

Legal principles established

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  • Election petitions require strict personal service unless Parliament has specifically dispensed with it; other modes of service are merely alternatives to personal service.
  • Service on an advocate is not valid service where the advocate has not been appointed by the respondent for the petition and the appointment notified to the Registrar.
  • An appellate court will not normally interfere with a trial court's finding of fact unless it is based on no evidence, a misapprehension of the evidence, or wrong principles.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • National Assembly and Presidential Elections Actsection 20
  • National Assembly and Presidential Elections Actsection 20(1)(a)
  • National Assembly and Presidential Elections (Election Petitions) Rulesrule 14(2)

Cases cited (5)

  • Mwangi v Wambugu
    [1984] KLR 453; [1982-88] 1 KAR 278
  • Kibaki v Moi & another
    (2008) 2 KLR (EP) 351; [2000] 1 EA 1
  • Peters v Sunday Post Ltd
    [1958] EA 424
  • Selle & another v Associated Motor Boat K Ltd & others
    [1965] EA 123
  • Mwai Kibaki v Daniel arap Moi & another, Civil Appeals Nos 172, 193/1999
    unreported
On appeal from
High Court of Kenya at Nairobi
Election Petition No 3 of 2003 (Lari Constituency)
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate provisions; election petition matter arising under the National Assembly and Presidential Elections Act (cap 7)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kagunyi v Gathua & another (No 3) (2008) 3 KLR (EP) 1 [2007] KECA 36 (KLR)", Case Analysis (2007). Civil Appeal No 6 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/36/eng@2007-09-28

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