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Court of AppealDismissedCivil Appeal No. 310 of 2010· [2011] KECA 50 (KLR)

Titus Kiondo Muya v Peter Njoroge Baiya & 2 others [2011] KECA 50 (KLR)

Court of Appeal of Kenya
11 November 2011
2,932 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that an election petition fails if the losing candidate doesn't personally serve the winning candidate within 28 days.

What this practically means

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Executive summary

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The appellant lost the Githunguri Constituency parliamentary election of 27th December 2007 to the 1st respondent and filed an election petition at the High Court on 28th January 2008, the last day allowed by law. The 1st respondent applied under Sections 20(1) and 23(2) of the National Assembly and Presidential Elections Act to strike out the petition for want of valid service. Visram, J. struck out the petition on 7th May 2008, finding no personal service, no due diligence justifying alternative service under Section 20(1)(c)(iv), and an out-of-time Gazette publication. The appellant appealed on fourteen grounds, contending that service on the 1st respondent's secretary was valid because the 1st respondent was a practising advocate whose secretary was a recognised agent, and that the judge misapplied Section 20. The Court of Appeal, in a single judgment of the court delivered by O'Kubasu, Githinji and Onyango Otieno, JJ.A., dismissed the appeal. Relying on its own prior decisions in James Nyamweya v Cosmos F.C. Oluoch and Kibaki v Moi, the Court held that service on an agent or secretary is not proper or valid service of an election petition, that the 1st respondent was being served as a winning candidate and not as an advocate, and that a single afternoon's efforts did not amount to the due diligence required before resorting to Gazette publication, which was itself out of time. The Court affirmed the striking out of the petition and the award of costs to all respondents, dismissing the appeal with costs to the respondents.

Key legal issues

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01

Whether service of an election petition on a candidate's secretary at his law office constitutes valid service

Holding

It does not; service on an agent is invalid service of an election petition.

Reasoning

The Court relied on its prior decisions in James Nyamweya v Cosmos F.C. Oluoch and Kibaki v Moi holding that service on an agent, including a personal secretary, is not proper or valid service of an election petition. The 1st respondent was being served in his capacity as the victorious candidate, not as an advocate, so Order III rule 3 of the old Civil Procedure Rules on agents of advocates did not apply. The documents were simply left at the office after 4:00 p.m.

p. 5
02

Whether the alternative mode of service under Section 20(1)(c)(iv) was available to the appellant

Holding

It was not; due diligence was not shown and the Gazette publication of 29th January 2008 was outside the 28-day period.

Reasoning

Section 20(1)(c)(iv) permits service by Gazette and newspaper publication only where, after due diligence, personal service is not possible, and the petition must still be served within 28 days of gazettement of the results. The process server visited the law office once and moved around Kiambu town in one afternoon, which does not amount to due diligence. The Gazette publication was outside the 28 days and of no effect.

p. 5
03

Whether the appeal court should exercise discretion under Article 159 of the Constitution to salvage the petition

Holding

No such discretion was exercised; the petition was properly struck out despite the appellant's desperate situation.

Reasoning

Counsel for the appellant, in reply, conceded the difficulty and sought refuge in sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution. The Court acknowledged the appellant's desperate position in filing on the last day but held that the time was too short for the process server to effect valid service, and that the petition had been properly struck out.

p. 6

Legal principles established

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  • Service of an election petition on an agent, including a respondent's secretary at his law office, is not proper or valid service; personal service is required unless Parliament has specifically dispensed with it.
  • The alternative mode of service by Gazette and newspaper publication under Section 20(1)(c)(iv) is only available after due diligence to effect personal service, and must itself be effected within the 28-day period.

Court orders

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  1. 1.The appeal be and is hereby dismissed with costs to the respondents

Authorities

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Legislation

  • National Assembly and Presidential Elections Act (Cap 7 Laws of Kenya)Section 20(1)(a),(b),(c) including proviso (iv)
  • National Assembly and Presidential Elections Act (Cap 7 Laws of Kenya)Section 23(1)(d) and 23(2)
  • National Assembly Elections (Election Petition) Rules, 1993Rule 10, Rule 14, Rule 34
  • Presidential and Parliamentary Elections Regulationsnot specified
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of KenyaArticle 159
  • Civil Procedure Rules (old)Order III rule 3

Cases cited (3)

  • James Nyamweya vs. Cosmos F.C. Oluoch
    Election Petition No. 74 of 1993
  • Kibaki v. Moi
    Civil Appeal No. 172 of 1999
  • Mwita Wilson Marda – versus – K. Machage & Others
    High Court Election Petition Number 5 of 2008
On appeal from
High Court of Kenya at Nairobi
H.C. Election Petition No. 31 of 2008
Jurisdiction invoked
Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Visram, J.) in H.C. Election Petition No. 31 of 2008, 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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Cite this brief

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Cite this brief

Caselaw, "Titus Kiondo Muya v Peter Njoroge Baiya & 2 others [2011] KECA 50 (KLR)", Case Analysis (2011). Civil Appeal No. 310 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/50/eng@2011-11-11

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