M’Mithiaru v Maore & 2 others (No 2) (2008) 3 KLR (EP) 730 [2007] KECA 468 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that election petitions must be personally served, that radio announcements don't count, and vague service attempts get petitions thrown out.
What this practically means
#Executive summary
#Key legal issues
#Mode of service of an election petition under section 20(1)(a) and rule 14(2)
Section 20(1)(a) prescribes only the 28-day time limit; the mode of service is governed by rule 14(2), whose modes are alternative to personal service, which remains the best form.
The court read section 20(1)(a) of the Act and rule 14(2) of the 1993 Rules together, holding no conflict exists because the section fixes time and the rule fixes mode. The word 'may' in rule 14(2) shows the listed modes are alternatives available when personal service is impossible. Kibaki v Moi was distinguished: there no attempt at personal service was made at all, whereas the rule contemplates personal service first where feasible.
Whether evasion of service permits an inference of personal service
Personal service can be inferred where every effort to serve is thwarted by the respondent's evasive conduct, but on these facts no such inference arose.
Drawing on Abu Chiaba v Mohamed Bwana Bakari, the court held that hiding, refusing to acknowledge service or blocking the process server justifies an inference of service. But here the process server's affidavit was vague: he did not state he believed the respondent was in the office or at home, did not explain the basis for going to Mutuati, and never pasted the petition on the gate as done in Abu Chiaba. The attempts fell short of what is required.
Substituted service by electronic media and time of service
Service of an election petition by radio/television announcement is unlawful; service must occur before 5.00 pm, and late-night announcements cannot effect service.
The 1993 Rules make no provision for substituted service by broadcast, so Onyancha J acted without jurisdiction in ordering it. There was no guarantee the respondent heard an announcement aired between 10.20 pm and 11.45 pm. Applying order XLIX rule 8(2) of the Civil Procedure Rules, service outside official hours would offend public policy and possibly the constitutional right to privacy; the High Court was correct that service should have been effected before 5.00 pm.
Concurrent jurisdiction of High Court judges and designation by the Chief Justice
Every High Court judge has constitutional jurisdiction over election petitions; a judge of concurrent jurisdiction cannot nullify a brother judge's orders, and the proper course would have been review with the Chief Justice's permission.
Section 44 of the Constitution vests election jurisdiction in the High Court as a collective; the Act does not limit it to designated judges, and any such limitation would be void. Designation is a matter of administrative convenience. Since Mulwa J and Onyancha J had equal and concurrent jurisdiction, Mulwa J exceeded his jurisdiction by declaring Onyancha J's orders unlawful instead of the matter being referred for review.
Legal principles established
#- The alternative modes of service in rule 14(2) of the National Assembly Elections (Election Petitions) Rules, 1993 are available only when the respondent cannot be served in person; personal service remains the best mode.
- Personal service of an election petition may be inferred where the petitioner makes every reasonable effort to serve and the respondent thwarts service by hiding or other evasive tactics.
- Substituted service of an election petition through radio or television announcements is not sanctioned by law; in ordering such service the High Court acts without jurisdiction.
- A High Court judge has no jurisdiction to declare unlawful the orders of another High Court judge of equal and concurrent jurisdiction; the remedy lies in review or appeal.
- Jurisdiction to hear and determine election petitions and interlocutory matters arising from them vests in every judge of the High Court by virtue of section 44 of the Constitution; any statutory limitation to judges designated by the Chief Justice would be void.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the first respondent
- On appeal from
- High Court of Kenya at Meru
- HCEP No 1 of 2003
- Jurisdiction invoked
- First and last appeal to the Court of Appeal from a High Court election petition under section 44 of the (former) Constitution and the National Assembly and Presidential Elections Act (cap 7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’Mithiaru v Maore & 2 others (No 2) (2008) 3 KLR (EP) 730 [2007] KECA 468 (KLR)", Case Analysis (2007). Civil Appeal No 272 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/468/eng@2007-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.