Samuel Onyango Ong’ow v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 47 (KLR)
The bottom line
#A Kenyan election petition was struck out entirely because the court was not satisfied the petitioner properly served one respondent with the court documents.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd respondent was served with the petition
The court found she was not served
The petitioner elected direct service and relied on the process server's affidavit, which alleged identification of the 2nd respondent by photograph in Kericho town. The affidavit failed to state the date, time and specific place of the alleged service, and the process server, though summoned, could not be traced for cross-examination. Applying Karaba and Karatina Garments, the conflict of affidavits should have been tested on oath; the failure to avail the server triggered the Bukenya adverse inference, leaving the 2nd respondent's denial uncontroverted.
Consequences of failure to serve an election petition
Failure to serve goes to the root of the petition; the petition is a nullity and must be struck out
Relying on Article 87, section 77 of the Election Act, Rule 10 of the 2017 Petition Rules, and authorities including Rozaah Akinyi Buyu, Mohamed Odha Mao and Raila Odinga, the court held that Article 159(2)(d) does not excuse compliance with procedural imperatives in electoral disputes. Service is a fundamental step in electoral dispute resolution, and non-service is not curable as a technicality. The petition therefore could not stand.
Legal principles established
#- Non-service of an election petition is not a mere technicality curable under Article 159 of the Constitution; failure to serve goes to the root of the petition and renders it a nullity
- Where a crucial witness such as a process server is not availed, the court may infer his evidence would have been adverse to the party obliged to call him
- Filing a response by a respondent does not waive the petitioner's mandatory duty to serve the petition
- Truth of service is established on a balance of probabilities and there is a presumption of proper service unless rebutted; conflicting affidavits should be tested by cross-examination of the deponents
Court orders
#- 1.The petition be and is hereby struck out
- 2.All the 3 respondents are awarded costs of the petition and the application, to be taxed in accordance with the Advocates Remuneration Order and certified by the registrar of the Court
- 3.The certified costs awarded shall be paid out of the security deposit on pro rata basis
- 4.A certificate of the determination in accordance with section 86(1) of the Election Act 2011 shall issue to the Independent Electoral and Boundaries Commission and the Speaker of the County Assembly
- Jurisdiction invoked
- Article 87(3) of the Constitution, section 77(2) of the Elections Act 2011 and Rule 10(1)(a)(b) of the Elections (Parliamentary and County Elections) Petition Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Onyango Ong’ow v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 47 (KLR)", Case Analysis (2017). Election Petition (Muhoroni Constituency), petition filed 6th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/47/eng@2017-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.