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MagistrateStruck OutElection Petition (Kitale), petition filed 6/9/2017· [2017] KEMC 28 (KLR)

Buyera v Independent Electoral and Boundaries Commission of Kenya & 2 others (Election Petition 2 of 2017) (Civ) [2017] KEMC 28 (KLR)

Principal Magistrate's Court (Election Court)
13 November 2017
MMM.I.G. Moranga
4,476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court struck out an election petition because the petitioner never formally served it on the elected MCA, even though the MCA knew about it.

What this practically means

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Executive summary

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The 3rd respondent, Manjari Elikana Kagunda, who had been declared elected as Member of County Assembly for Kaplamai Ward in the 8th August 2017 elections, moved by notice of motion dated 10th October 2017 to strike out the election petition filed by Mutali Sam Buyera on 6th September 2017 on the ground that the petition was never served on him within the statutory 15 days. He argued that non-service went to the root of the petition, was not a procedural technicality curable under Article 159(2)(d), and that the court had no jurisdiction to extend the mandatory timelines under Article 87 of the Constitution and sections 76 and 77 of the Elections Act. The petitioner admitted non-service, attributing it to financial constraints and a failed attempt by a process server, and urged the court to deem the 3rd respondent's knowledge of the petition, and his filing of a response under protest, as equivalent to service by advertisement, and to invoke substantive justice to save the petition. The 1st and 2nd respondents supported striking out, citing lack of jurisdiction and hearsay in the service narrative. Guided by a consistent line of authorities including Patrick Ngeta Kimanzi v Marcus Mutua Muluvi, Kumbatha Naomi Cidi, Aluodho Florence Akinyi v IEBC and the Court of Appeal decision in Charles Kamuren v Grace Jelagat Kipchoim, the court held that service of an election petition is mandatory; that mere knowledge of the petition neither cures want of service nor discharges the petitioner's burden; that the court has no power, inherent or otherwise, to extend the mandatory timelines; and that a petition not served on all respondents is incompetent against all respondents, including those served. The petition was struck out with costs assessed at Kshs.300,000 each to the 1st and 2nd respondents and the 3rd respondent, payable from the security deposit on a pro-rata basis, with a certificate of determination to issue under section 86(1) of the Elections Act, and the petitioner was granted leave to appeal within thirty days.

Key legal issues

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01

Whether service of an election petition is mandatory and whether knowledge of the petition cures want of service

Holding

Service is mandatory; the 3rd respondent's knowledge of the petition from the 2nd respondent did not waive or discharge the petitioner's statutory duty to serve, and the petition is incompetent for want of service.

Reasoning

Relying on Patrick Ngeta Kimanzi v Marcus Mutua Muluvi, Kumbatha Naomi Cidi, and Aluodho Florence Akinyi v IEBC, the court held that service is an integral element of the right to a fair hearing. The petitioner's excuse of financial constraints and failed attempts by an unnamed process server, unsupported by an affidavit of non-service, could not excuse the lapse, and resort to newspaper advertisement should have been made within the 15 days.

p. 6
02

Whether the court can extend time or invoke Article 159(2)(d) and inherent jurisdiction to cure non-service

Holding

No. The timelines for service are mandatory and couched in statutory terms; Article 159 cannot cure want of service as it is not a mere procedural technicality.

Reasoning

Following Charles Kamuren v Grace Jelagat Kipchoim (E&L and Court of Appeal) and Patrick Ngeta Kimanzi, the court held non-service goes to the root of the petition and is not a technicality curable under Article 159(2)(d). Inherent jurisdiction is part of procedural, not substantive law, and cannot aid the petitioner where statutory discretion does not exist.

p. 6
03

Whether the petition could survive against the 1st and 2nd respondents after failure of service on the 3rd respondent

Holding

It could not; a petition not properly served on all respondents is rendered incompetent against all respondents.

Reasoning

Relying on Ayub Juma Mwakesi v Mwakwere Chirau Ali, Koyi Waluke v Moses Masike Wetangula and David Wakairu Murathe v Samuel Kamau Macharia, the court reasoned that any orders made in the absence of the unserved 3rd respondent would offend natural justice, and the petition was primarily directed at the 3rd respondent's election.

p. 7

Legal principles established

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  • Service of an election petition is a mandatory requirement and want of service renders the petition incompetent; mere knowledge by the respondent does not waive the petitioner's duty to serve.
  • The court has no jurisdiction or inherent power to extend the mandatory statutory time for service of an election petition.
  • A petition not properly served on all respondents named is rendered incompetent against all respondents, including those served.

Court orders

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  1. 1.The petition is struck out
  2. 2.Costs of the petition and application awarded to the respondents, assessed at Kshs.300,000 instruction fees each for the 1st and 2nd respondents and for the 3rd respondent
  3. 3.Other incidental costs to be assessed and certified by the court if not agreed upon by the parties
  4. 4.Certified costs to be paid out of the security deposit on a pro-rata basis
  5. 5.A certificate of determination under section 86(1) of the Elections Act 2011 to issue to the IEBC and the Speaker of the County Assembly, Trans Nzoia
  6. 6.The petitioner granted leave to appeal within thirty (30) days under section 75(4)(a) of the Elections Act

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 87(1), 87(3), 159(2)(d)
  • Elections Act No. 24 of 2011sections 75(4)(a), 76(1)(a), 77(2), 84, 86(1)
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rules 4, 5, 10(1), 21, 36(1)(a)
  • Elections (General) Regulations, 2012regulation 83(1)(e)

Cases cited (15)

  • Charles Kamuren v Grace Chelagat Kipchoim and 2 others (2013) eKLR, Eldoret Petition No.1 of 2013
  • Charles Kamuren v Grace Jelagat Kipchim and 2 others (2013) eKLR, Civil Appeal No.159 of 2013
  • Presidential Petition No.1 of 2017
  • Mohammed Odha Mora v The County Returning Officer Tana River & Others, Malindi Petition No.15 of 2013
  • Patrick Ngeta Kimanzi v Marcus Mutua Muluvi and 2 others, Election Petition Machakos No.8 of 2013
  • Kumbatha Naomi Cidi v County Returning Officer Kilifi and others, Malindi EP No.13 of 2013
  • Aluodho Florence Akinyi v IEBC and 2 others (2017), Siaya Election Petition No.4 of 2017
  • Shariff Abdulkadir Abderehman v Abdallah Chikophe and 2 others (2014) eKLR
  • Rev. Madara Evans Onkanga Pondo v Housing Finance Company of Kenya, Nakuru HCC No.202 of 2005
  • Ayub Juma Mwakesi v Mwakwere Chirau Ali and 2 others
  • Koyi Waluke v Moses Masike Wetangula and 2 Others
  • David Wakairu Murathe v Samuel Kamau Macharia, Civil Appeal No.171 of 1998
  • John Michael Njenga Mututho v Jaynne Njeri Wanjiku Kihara and 2 others, Nakuru Civil Appeal No.102 of 2008
  • Nyamweya v Oluoch and others
  • Benard Mwenda Munyasia v Charity Ngilu and others
Jurisdiction invoked
Article 87 of the Constitution; sections 76(1)(a) and 77(2) of the Elections Act No. 24 of 2011

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, "Buyera v Independent Electoral and Boundaries Commission of Kenya & 2 others (Election Petition 2 of 2017)  (Civ) [2017] KEMC 28 (KLR)", Case Analysis (2017). Election Petition (Kitale), petition filed 6/9/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/28/eng@2017-11-13

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