Turibu Moses Kinyua v Andrew Kobia M’eringo & 2 others [2013] KEMC 76 (KLR)
The bottom line
#A Kenyan election petition was struck out because the politician failed to prove he properly served the respondent — service is mandatory, not a technicality.
What this practically means
#Executive summary
#Key legal issues
#Proof of service of the election petition on the 2nd respondent
Petitioner failed to discharge the burden of proving service; irreconcilable contradictions in the affidavits cast serious doubt that any personal service occurred
The process server's affidavits dated the service on the 2nd respondent as 12.4.2014 (an impossible date), while the petitioner and the driver deponed service occurred on 11.4.2013. The driver's account contradicted the process server's claim of travelling by motor bike and serving the respondents on different days. The affidavit of service was filed belatedly, only after the striking-out application. These contradictions could not be reconciled, and on the higher electoral standard of proof the petitioner failed to prove service.
Consequence of want of service
Failure to serve the respondent renders the petition incompetent and liable to be struck out
The court, relying on Article 87(2) of the Constitution, section 77 of the Elections Act and Rule 13(1) of the Election Petition Rules, and precedent including Kagunyi v Gathua, Bett v ECK and Ayub Juma Wakesi v Mwakwere, held that personal/direct service is mandatory and that a petition not served on all respondents is rendered incompetent.
Pre-trial orders for documents, registers, recount and observers' reports
Application disallowed: some prayers overtaken by events, others premature, others outside the court's jurisdiction; the application was a fishing expedition
Forms 35 and 36 had been supplied in the response; forms 34 pertain to presidential results outside the court's jurisdiction; marked registers were in sealed boxes available only upon commencement of the hearing; a recount was premature as it was not the sole prayer; observers were not parties. The court lacked jurisdiction over other elective posts.
Legal principles established
#- Service of an election petition may be direct/personal or by advertisement in a newspaper of national circulation (Article 87(2), s.77(2) Elections Act, r.13(1) Election Petition Rules)
- Personal service in an election petition is a legal requirement, not a technicality, and the petition must be personally served on the respondent within the statutory period
- All respondents must be served in the prescribed manner; failure to serve all respondents renders the entire petition incompetent
- The standard of proof in electoral disputes is higher than balance of probabilities but lower than beyond reasonable doubt; where service is denied, the petitioner bears the burden of proving service
Court orders
#- 1.The 2nd respondent's application allowed — the petition struck out for want of service with costs
- 2.The petitioner's notice of motion dated 8.4.2013 disallowed in its entirety
- 3.Costs of the petitioner's application to be in the cause
- 4.Typed proceedings to be supplied to counsel and parties on payment of requisite charges
- Jurisdiction invoked
- Elections Act 2011 (s.77, s.80); Constitution of Kenya 2010 Article 87(2); Election Petition Rules (r.13(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Turibu Moses Kinyua v Andrew Kobia M’eringo & 2 others [2013] KEMC 76 (KLR)", Case Analysis (2013). Election Petition (Muthara Ward) — 2 applications dated 8.4.2013 and 19.4.2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/76/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.