Titus Kiondo Muya v Peter Njoroge Baiya & 2 others [2011] KECA 50 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether service of an election petition on a candidate's secretary at his law office constitutes valid service
It does not; service on an agent is invalid service of an election petition.
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.
Whether the alternative mode of service under Section 20(1)(c)(iv) was available to the appellant
It was not; due diligence was not shown and the Gazette publication of 29th January 2008 was outside the 28-day period.
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.
Whether the appeal court should exercise discretion under Article 159 of the Constitution to salvage the petition
No such discretion was exercised; the petition was properly struck out despite the appellant's desperate situation.
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.
Legal principles established
#- 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
#- 1.The appeal be and is hereby dismissed with costs to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.