Saad Yusuf Saad v Independent Electoral and Boundaries Commission, Nancy Wanjiku Kariuki & Mohamed Asha Hussein
The bottom line
#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
#Executive summary
#Key legal issues
#Proper service of an election petition
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
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.
Signature of the petition by advocates
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
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.
Supporting affidavit under Rule 12
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)
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.
Contents of the petition under Rule 8(1)
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)
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.
Legal principles established
#- 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
#- 1.The Application dated 25.9.17 by the 3rd Respondent is allowed
- 2.The Petition is struck out as incurably defective
- 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
- Jurisdiction invoked
- Article 87 of the Constitution; Elections Act; Elections (Parliamentary & County Elections) Petition Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.