Justus Mungumbu Omiti v Walter Enock Nyambati Osebe, Lawrence Ole Sempele & The Electoral Commission of Kenya
The bottom line
#Kenya's Court of Appeal restored an election petition, ruling that service by Gazette publication was valid and minor defects could not kill the case.
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 striking-out motion, whose prayer omitted the date of presentation/filing of the petition and whose supporting affidavit referred to a petition 'lodged on 22nd January, 2008', was incompetent and should have been struck out in limine.
- 2.Whether the process server's affidavit of service, filed as an annexture to a replying affidavit rather than as a standalone filed document, was properly struck out and excluded as inadmissible hearsay.
- 3.Whether, on the evidence including the affidavit of service, the appellant exercised due diligence before resorting to alternative modes of service under proviso (iv) to section 20(1) of the Act.
Key legal issues
#Competence of the striking-out motion despite defective prayer and affidavit date
The motion was not incompetent; the omitted date and the affidavit's reference to 22nd January caused no prejudice and were curable technicalities under section 23(1)(d).
The court held the overwritten alteration of the affidavit a nullity, but found the original typewritten date of 11th January was correct, so the affidavit as originally drawn was unimpeachable. The motion's omission of dates caused no prejudice since the appellant's own advocate swore the petition was filed on 11th January. Section 23(1)(d) required election petitions to be decided without undue regard to technicalities.
Admissibility and treatment of the process server's affidavit of service
The election court erred in striking out and ignoring the affidavit of service; it was properly on record, having been introduced with leave and subject to a cross-examination order, and should have been evaluated to establish the truth about service.
The statute governing election petitions makes no provision for when an affidavit of service must be filed; unlike civil summonses there is no default judgment mechanism requiring a filed return of service. Leave was granted to file the replying affidavit incorporating the affidavit of service, and a cross-examination order was made. The trial judge wrongly declared it expunged when it remained on record, and failed to examine the very evidence bearing on the disputed fact of service.
Due diligence before alternative service under proviso (iv) to section 20(1)
On a fresh evaluation as a first appeal, the process server's unchallenged depositions established on a balance of probability that the appellant discharged the onus of showing diligence before advertising the petition on 17th January 2008.
The trial judge found no due diligence solely because no affidavit of service predated the advertisement, but he had wrongly excluded the affidavit that would have established those facts. The Court of Appeal, evaluating the affidavit afresh, found multiple documented attempts at personal service (telephone calls, Parliament, residence, Safari Park Hotel) thwarted by security and post-election circumstances, meeting the standard of diligence reasonably and ordinarily expected.
Statutory service regime for election petitions (Githinji, JA)
Proviso (iv) to section 20(1) did not enact personal service as the statutory procedure; Rule 14(2) read with Rule 10 provided the service procedure, and Gazette publication on 25th January 2008 satisfied it, so the striking-out application had no basis.
Githinji, JA reaffirmed his earlier construction in Mwakwere Chirau Ali that no statutory provision requires personal service of election petitions and that where a plain statute conflicts with previous judge-made law, the statute prevails. The admitted Gazette Notice No. 449 of 25th January 2008 constituted service as stipulated by Rule 14(2), independently of the due diligence question.
Legal principles established
#- An affidavit consists of sworn factual evidence and cannot be amended by alteration of its contents; an overwritten alteration is a nullity.
- An affidavit of service introduced on record with leave of the court, coupled with an order for cross-examination, is part of the record and cannot be ignored as inadmissible hearsay.
- A petitioner must demonstrate due diligence in attempting personal service before invoking proviso (iv) to section 20(1) and resorting to alternative modes of service.
- The standard of diligence is that reasonably and ordinarily expected of the person obliged to satisfy the legal requirement, a matter for investigation and determination by the election court on all facts and circumstances.
Court orders
#- 1.The decision and orders of the superior court made on 11th July, 2008 set aside and substituted with an order dismissing the 1st respondent's notice of motion dated 7th February, 2008.
- 2.The appellant awarded the costs of the appeal and of the motion before the superior court, to be borne by all three respondents jointly and severally.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Short concurring judgment agreeing with Waki, JA that the appeal be allowed because the affidavit of service was erroneously struck out and due diligence preceded alternative service, and agreeing with the proposed costs order.
I agree with the reasoning of Waki, J.A. that the appeal be allowed on the basis that the affidavit of service was erroneously struck out and that there was due diligence before alternative means of service was adopted by the appellant.p. 1
Wrote the judgment
Held that on true construction proviso (iv) to section 20(1) did not enact personal service as the statutory procedure; Rule 14(2) as read with Rule 10 provided the service procedure, and the 1st respondent was served by Gazette publication on 25th January 2008, so the striking-out application had no basis.
Thus, the 1st respondent was served with the notice of presentation of the petition as stipulated by Rule 14 (2) of Election Petition Rules. It follows that the application to strike out the petition for non-service had no basis.p. 3
Wrote the judgment
Lead judgment. Held the defective prayer and overwritten date in the supporting affidavit were curable technicalities under section 23(1)(d); the process server's affidavit of service was wrongly struck out since it was on record by leave of court with an order for cross-examination; and its unchallenged contents established due diligence on a balance of probability.
Having done so, I think the factual depositions of the process server, which were not challenged in cross-examination, do establish on a balance of probability that the appellant discharged the onus of showing diligence in serving the petition.p. 12
- On appeal from
- High Court of Kenya at Kisii (Election Court)
- Kisii Election Petition No. 1 of 2008
- Jurisdiction invoked
- First and final appeal in an election petition under the National Assembly and Presidential Elections Act (Cap 7); the judgment records the appeal as 'this first and final appeal' without citing the specific appellate provision.
Relief refused
#Appellant's first tranche of grounds attacking the competence of the striking-out motion for want of dates in the prayer and supporting affidavit.
The omission caused no prejudice; the original typewritten date was correct and the defect was a technicality curable under section 23(1)(d) of the Act.
Costs
The appellant shall have the costs of the appeal and the motion before the superior court, to be borne by all three respondents jointly and severally.
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.
The upshot is that the appeal is allowed. The decision and orders of the superior court made on 11th July, 2008 are hereby set aside and substituted by an order dismissing the 1st respondent’s notice of motion dated 7th February, 2008.
The appellant shall have the costs of the appeal and the motion before the superior court to be borne by all three respondents, jointly and severally.
The affidavit of service was before the court pursuant to its own orders and there was no reason to ignore it.
That alteration was a nullity in law and must therefore be ignored.
I agree with the learned Judge in those circumstances that it was a technicality which ought not to hamper the hearing and determination of an election petition which by dint of section 23 (1) (d) of the Act shall be decided “without undue regard to technicalities”.
Thus, the 1st respondent was served with the notice of presentation of the petition as stipulated by Rule 14 (2) of Election Petition Rules. It follows that the application to strike out the petition for non-service had no basis.
It is so ordered.
Issues in the judgment
#Conflicting dates for the ruling below within the judgment
Inconsistent section number cited for the service provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Mungumbu Omiti v Walter Enock Nyambati Osebe, Lawrence Ole Sempele & The Electoral Commission of Kenya", Case Analysis (2010). Civil Appeal No. 183 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/475/eng@2010-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.