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ELCPartially AllowedElection Petition of Saad Yusuf Saad dated 6th September 2017 (Notice of Motion dated 25.9.17)· [2017] KEELC 285 (KLR)

Saad Yusuf Saad v Independent Electoral and Boundaries Commission, Nancy Wanjiku Kariuki & Mohamed Asha Hussein

High Court of Kenya (Election Court)
13 November 2017
7,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out an Mombasa election petition because it omitted the actual results and was never properly served.

What this practically means

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Executive summary

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The 3rd Respondent, the elected Mombasa County Woman Member of the National Assembly, applied to strike out or dismiss the Petitioner's election petition challenging her election. She raised several objections: improper service, an unsigned petition, absence of a supporting affidavit, non-compliance with Rule 8(1) on the petition's contents, and plagiarism of the Supreme Court presidential petition. The Court declined to strike out her supporting affidavit, finding it compliant with Order 19 CPR and the Oaths and Statutory Declarations Act. On service, the Court found the process server's affidavit unreliable: the call logs did not substantiate the alleged call from the 3rd Respondent, and the purported agent 'Mohamed' was never identified or authorised in writing. Following Rozaah Akinyi Buyu, service was held not effected. On signature, the Court distinguished Jahazi v Cherogony and adopted Achode J's reasoning in Charles Kamuren, holding that an advocate once instructed may sign the petition under Rule 8(4)(a). However, the petition and the petitioner's supporting affidavit both failed to state the petitioner's name and address, the election results, the date of declaration, and the advocate's address for service, contravening Rules 8(1)(a),(c),(f) and 12(2). Following Mututho and Evans Nyambaso Zedekiah, and declining to follow the concurrent decision in Samuel Kazungu Kambi, the Court held the omissions fatal and Article 159(2)(d) no refuge. The Petition was struck out as incurably defective, with costs to the Respondents capped at Kshs. 3,000,000/=, taxed and apportioned pro rata by the Deputy Registrar.

Key legal issues

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01

Proper service of an election petition

Holding

Service upon an unverified purported agent ('Mohamed') whose instructions could not be established, and where no incoming call from the 3rd Respondent appeared in the call logs, was not proper service

Reasoning

The process server did not identify Mohamed, obtain his identity card or written authority, and the call logs contradicted the averment that the 3rd Respondent called. The affidavit of service was thus unreliable and direct service on a duly authorised agent was not proved.

p. 4
02

Signature of the petition by advocates

Holding

Rule 8(4)(a) permits signing by the petitioner 'or a person authorised by the petitioner'; an advocate once instructed qualifies, distinguishing Jahazi v Cherogony where the old rule was mandatory

Reasoning

The current Rule 8(4) contains an alternative absent from the previous Rule 4(3), and Achode J's reasoning in Charles Kamuren was adopted; the signature defect therefore did not invalidate the Petition.

p. 5
03

Supporting affidavit under Rule 12

Holding

A supporting affidavit sworn by the petitioner existed, but it failed to state the date of the election, the results, the date of declaration, or the advocate's address, contravening Rule 12(2)(b),(c),(d) and (f)

Reasoning

Although the affidavit declared support for the petition, its contents omitted mandatory particulars, and the results could not be supplied from a third party's affidavit.

p. 6
04

Contents of the petition under Rule 8(1)

Holding

The Petition omitted the petitioner's name and address in the body, the election results, and the advocate's address for service, contravening Rule 8(1)(a),(c) and (f)

Reasoning

Following Mututho and Evans Nyambaso Zedekiah, omission of results and other material particulars renders a petition incurably defective; the mere averment that the 3rd Respondent garnered 186,144 votes was not 'election results' as defined.

p. 7

Legal principles established

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  • Service of an election petition must be by direct (personal) service or service on a duly authorised agent, or by advertisement in a newspaper of national circulation; failure to serve goes to the root of the petition
  • Once instructed, an advocate may sign an election petition on behalf of a petitioner as 'a person authorised by the petitioner' under Rule 8(4)(a)
  • The mandatory requirements of Rules 8, 10 and 12 of the Election Petition Rules are not mere technicalities; omission of material particulars such as the election results renders a petition incurably defective
  • Article 159(2)(d) does not excuse non-compliance with mandatory procedural imperatives

Court orders

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  1. 1.The Application dated 25.9.17 by the 3rd Respondent is allowed
  2. 2.The Petition is struck out as incurably defective
  3. 3.Costs awarded to the Respondents, capped at Kshs. 3,000,000/= aggregate, to be taxed by the Deputy Registrar and apportioned to the Respondents pro rata

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 87(3); Article 159(2)(d)
  • Elections ActSection 77(2); Section 2 (definition of 'election results')
  • Elections (Parliamentary & County Elections) Petition Rules 2017Rules 2, 7(b), 8(1), 8(4), 10(1), 12(1), 12(2), 12(12)
  • Oaths and Statutory Declarations ActSection 5; Third Schedule (Rules)
  • Civil Procedure Rules, 2010Order 19 Rules 2(1), 5, 6
  • Elections (General) Regulations, 2012Regulation 87(2)(b)
  • Evidence ActSection 60
  • National Assembly and Presidential Elections ActReferred to in Mututho as a complete code

Cases cited (10)

  • Rozaah Akinyi Buyu v IEBC & Others
    [2014] eKLR
  • Jahazi v Cherogony
    [1984] 814
  • Charles Kamuren v. Grace Jelegat Kipchoim & 2 Others
    [2013] eKLR
  • Hosea Mundui Kiplagat v Sammy Komen Mwaita & 2 Others
    High Court at Nairobi Election Petition No. 11 of 2011
  • John Michael Njenga Mututho v Jayne Njeri Wanjiku Kihara & 2 others
    [2008] eKLR
  • Evans Nyambaso Zedekiah & another v Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
  • Samuel Kazungu Kambi & Another v IEBC and Others
    Election Petition No. 4 of 2017 consolidated with Election Petition No. 5 of 2017
  • Amina Hassan Ahmed v Returning Officer Mandera County & 2 Others
    [2013] eKLR
  • Raila Odinga v. I.E.B.C & others
    (2013) eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
Jurisdiction invoked
Article 87 of the Constitution; Elections Act; Elections (Parliamentary & County Elections) Petition Rules 2017

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, "Saad Yusuf Saad v Independent Electoral and Boundaries Commission, Nancy Wanjiku Kariuki & Mohamed Asha Hussein", Case Analysis (2017). Election Petition of Saad Yusuf Saad dated 6th September 2017 (Notice of Motion dated 25.9.17). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/285/eng@2017-11-13

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