Dickson Daniel Karaba v John Ngata Kariuki, James Kariuki Gitau & Electoral Commission of Kenya
The bottom line
#Kenya's Court of Appeal ruled that an MP was properly served with an election petition, reviving the challenge to his 2007 election win.
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 1st respondent was personally served with the election petition in accordance with section 20(1)(a) of the National Assembly and Presidential Elections Act within the statutory 28-day period
- 2.Whether the superior court erred in its evaluation of the conflicting affidavit evidence on service, including its reliance on the untested handwriting expert's report and the affidavit of Rose
Key legal issues
#Mode and proof of service of an election petition under section 20(1)(a)
The court affirmed the three-tier framework: personal service is best; inferred personal service where the respondent evades; substituted Gazette/newspaper service only as a last resort after due diligence.
Tracing the legislative history from Kibaki v Moi through the 2007 amendment inserting the publication proviso, the court held Parliament has not disapproved the judicial construction. Personal service remains the norm; evasive conduct by a respondent allows inference of service; publication is a fallback requiring demonstrated due diligence.
Evaluation of conflicting affidavit evidence on service
The superior court misdirected itself in rejecting the process server's evidence; the presumption of regularity of service stood unrebutted because the respondent declined to cross-examine the process server, and the handwriting report was untested.
Cross-examination orders had been made precisely to resolve the factual conflict. Only the respondent was cross-examined, and his evidence contained material admissions (his presence at the hotel, Rose's role, receipt of the documents). Declining to cross-examine the process server left his deposition effectively unchallenged; the unilateral expert letter should not have carried decisive weight.
Duty of a first appellate court on facts
A first appellate court must re-evaluate the evidence and reach its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses.
The court invoked Selle v Associated Motor Boat Company to justify its fresh assessment of the affidavit evidence, oath testimony and admissions, concluding the judge's evaluation was erroneous in fact and law.
Legal principles established
#- Personal service of an election petition is the best form of service; where a respondent evades or frustrates completion of service, personal service may be inferred; substituted service by Gazette and newspaper publication is a last resort only after demonstrated due diligence.
- There is a qualified presumption in favour of a process server's affidavit of service; where service is denied and affidavits conflict, the deponents should be cross-examined, and a party who declines the opportunity risks the depositions standing unchallenged.
- Failure or refusal by a respondent to acknowledge service, or evasive conduct after initial contact, does not invalidate service already effected.
Court orders
#- 1.Appeal allowed with costs to the appellant
- 2.Ruling of the superior court dated 28th May 2008 set aside
- 3.The 1st respondent's notice of motion dated 27th February 2008 dismissed with costs to the petitioner/respondent in that application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- H.C. Election Petition No. 1 of 2008 (ruling of 28th May 2008)
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court sitting as an election court (National Assembly and Presidential Elections Act, Cap 7)
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 short, substituted service is a last resort which will be used as a mode of service after the petitioner and his process server have demonstrated that they made every effort to serve the respondent personally but it became impossible to do so.
The truth of the matter is that personal service remains the best form of service in all areas of litigation and to say that members of Parliament are a different breed of people and different rules must apply to them as opposed to those applicable to other Kenyans cannot support the principle of equality before the law.
Personal service remains the best form of service. However, personal service need not be by actually handing over the papers to the respondent.
We set aside the Ruling of the superior court made on 28th May, 2008 and substitute therefor an order that the 1st respondent’s notice of motion dated 27th February, 2008, be and is hereby dismissed with costs to the petitioner/respondent in that application.
We think in the circumstances of this case they did so at the risk of leaving unchallenged the process server’s deposition and there was no firm basis for disbelieving his evidence.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Daniel Karaba v John Ngata Kariuki, James Kariuki Gitau & Electoral Commission of Kenya", Case Analysis (2010). Civil Appeal No. 125 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/470/eng@2010-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.