NTOITHA M’MITHIARU v RICHARD MAOKA MAORE & 2 others [2007] KECA 156 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an MP's election challenge because the petitioner never properly served the petition on the MP within the strict 28-day deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether only judges designated by the Chief Justice have jurisdiction to hear and determine election petitions
No. Every judge of the High Court has constitutional jurisdiction under section 44; designation by the Chief Justice is a matter of administrative convenience, not jurisdiction, and any statutory limitation to designated judges would be void for inconsistency with the Constitution.
Section 44(1) of the Constitution confers jurisdiction on the High Court as a collective, employing the term 'application' rather than 'Election Petition'. The Act defines an election court as the High Court exercising jurisdiction under section 44(1), and section 19 requires the application to be made to the High Court, not to a designated judge. Only section 23(2) deals with interlocutory matters. Any purported limitation would be void under section 3 of the Constitution.
Whether one High Court judge may overrule or declare unlawful the orders of a judge of equal and concurrent jurisdiction
A judge has no jurisdiction to declare unlawful orders made by a judge of equal and concurrent jurisdiction; the proper course is review by the judge who made the orders, with the Chief Justice's permission if that judge is unavailable.
Omolo JA reasoned that allowing a coordinate judge to declare another's orders unlawful would create chaos in the High Court and render the appeal process unnecessary. Onyancha J and Mulwa J had equal and concurrent jurisdiction, so Mulwa J could not pronounce Onyancha J's substituted service order unlawful. Both Omolo JA and Onyango Otieno JA agreed on this legal position.
The proper construction of rule 14(2) of the 1993 Election Petition Rules and its relationship with section 20(1)(a) of Cap 7
Section 20(1)(a) prescribes only the time of service (28 days); rule 14(2) prescribes the modes of service, which are alternatives available when the respondent cannot be served in person. Githinji JA held the rule's three modes exclude personal and substituted service; Onyango Otieno JA held personal service remains the best mode with rule 14(2) alternatives available.
The judges read section 20(1)(a) and rule 14(2) harmoniously: the statute fixes the time-limit while the subsidiary legislation fixes the modes. Onyango Otieno JA noted the word 'may' in rule 14(2) and that Kibaki v Moi itself expected reasons where personal service was not attempted, recognising alternative modes. Githinji JA applied expressio unius est exclusio alterius to exclude personal and substituted service from rule 14(2).
Whether the appellant's attempts at service established evasion justifying an inference of personal service
No. Unlike Abu Chiaba, the process server's affidavit did not show belief that the first respondent was present but hiding, gave no particulars of the Mutuati visit, and did not paste the petition on the respondent's gate; no inference of service could be drawn.
The process server did not state that he believed the first respondent was at the office or home when told he was absent, did not explain why he went to Mutuati, and crucially did not pin the petition and notice on the gate of the first respondent's home on a subsequent failed visit, which would have furnished objective evidence of attempted service. The first respondent's conduct could not be characterised as evasion on that material.
Whether service by radio announcement late at night on the last day of the 28-day period constituted valid service within time
No. Service through electronic media is not sanctioned by law; in any event the announcement was made after 5.00 p.m., was only notice of filing rather than service of the petition itself, and the petition itself was never served within the 28 days.
Githinji JA held that the rules exclude substituted service, that a radio announcement cannot guarantee the respondent would hear it, and that service outside official hours would be against public policy. The announcement merely notified that a copy could be obtained from the registry, whereas section 20(1)(a) required the petition to be served within 28 days, which expired at midnight on 31st January 2003 before the petition itself was served.
Legal principles established
#- Jurisdiction to hear and determine election petitions is vested by section 44 of the Constitution in each and every judge of the High Court; the Chief Justice's designation of judges to hear particular election petitions is for administrative convenience only and does not affect jurisdiction
- A judge of the High Court has no jurisdiction to declare unlawful and unacceptable orders made by a brother judge of equal and concurrent jurisdiction; the proper course is review by the judge who made the orders with the Chief Justice's permission
- Personal service is the best form of service of an election petition, but where a respondent evades service after the petitioner makes every reasonable effort, the court may infer personal service; mere failed attempts without evidence of evasion do not suffice
- Substituted service of an election petition through radio or television announcement is not a lawful means of service under the 1993 Election Petition Rules, and a judge ordering it acts without jurisdiction
- An election petition must be presented and served within 28 days after publication of the result in the Gazette; a petition not served within that period is out of time and cannot be saved
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.Costs of the appeal to the 1st respondent
- On appeal from
- High Court of Kenya at Meru
- H.C.E.P. No. 1 of 2003
- Jurisdiction invoked
- Statutory appeal from a High Court election-petition ruling (H.C.E.P. No. 1 of 2003); the judgment does not state the specific appellate provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rozaah Akinyi Buyu v Independent Electoral and Boundaries Commission & 2 others[2024] KECA 693 (KLR)21 Jun 2024
- Boni Khalwale v Bernard Shinali Masaka & 2 others [2008] KECA 43 (KLR)[2008] KECA 43 (KLR)19 Dec 2008distinguished
- Fitzgerald Oluoch Okello (undisclosed Petitioner name in judgment text) vs Raila Amolo Odinga, Electoral Commission of Kenya & Others[2008] KEHC 155 (KLR)17 Dec 2008followed
- Juma Mbui Suleiman & Another v Mwahima Mwalimu Masudi & 2 Others[2008] KEHC 2960 (KLR)13 May 2008followed
- Bernard Mwendwa Munyasya v Charity Kaluki Ngilu & 2 Others[2008] KEHC 2970 (KLR)29 Apr 2008
- Mwita Wilson Paul Maroa v Gisuka Wilfred Machage, Electoral Commission of Kenya & Andrew Rianga[2008] KEHC 3641 (KLR)4 Apr 2008applied
Cite this brief
#Cite this brief
Caselaw, "NTOITHA M’MITHIARU v RICHARD MAOKA MAORE & 2 others [2007] KECA 156 (KLR)", Case Analysis (2007). Civil Appeal 272 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/156/eng@2007-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.