Hesborn Arao Nyakundi v Fred Nyachae Omayio & 2others [2017] KEMC 81 (KLR)
The bottom line
#A Kenyan court refused to strike out an election petition over disputed service and allowed extra witness evidence, prioritising a fair hearing over technicalities.
What this practically means
#Executive summary
#Key legal issues
#Whether service of the petition on the 1st Respondent through the Clerk of the Nyamira County Assembly amounted to proper service under Rule 10 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.
Service was proved; the unchallenged process server's affidavit established that the 1st Respondent was served and knew of the petition, having filed a response.
The court found the process server's affidavit unchallenged and noted the 1st Respondent admitted learning of the petition and filing a response, albeit hurriedly. Any doubt on service was slight. The Respondents had already filed responses, so no prejudice arose, and Article 159(2)(d) pointed to deciding the matter on the merits rather than striking out the petition.
Whether failure of service, if any, is a fatal defect or a curable procedural technicality.
A technicality; the court declined to strike out, invoking Article 159(2)(d) and authorities to the effect that election petition rules are handmaidens of justice.
Relying on Article 159(2)(d) and cases such as Nyamache v IEBC, Onyango v IEBC and Salat v IEBC, the court held that striking out on this ground would sacrifice substantive justice on a technicality, and each party has an unfettered right to a fair, just and full hearing of the petition.
Whether the Petitioner should be granted leave to file four further witness affidavits under Rule 12 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.
Leave granted; Rule 12(8) and 12(9) permit filing of further witness affidavits with leave of the court and for sufficient cause.
The court accepted the Petitioner's explanation that he had limited time to analyse voluminous documents and gather evidence across the ward, found the grounds plausible and cogent, and held that the parties' right to a fair, just and full hearing required allowing the additional evidence, which would not delay the hearing or prejudice the Respondents.
Legal principles established
#- Failure to challenge a process server's affidavit leaves the court to conclude that service was effected.
- Courts should determine disputes on their merits without undue regard to procedural technicalities.
- An election court may, on application or of its own motion, permit supplementary witness affidavits with leave and for sufficient cause.
Court orders
#- 1.The 1st Respondent's application dated 26th September, 2017 to strike out the petition is dismissed with each party bearing own costs.
- 2.The Petitioner's application dated 5th November, 2017 for leave to file four further witness affidavits is allowed with costs to the Respondents, such costs to be in the cause.
- 3.Proceedings and the rulings be typed and certified copies supplied to the parties as appropriate.
- 4.Leave to appeal granted to the 1st Respondent as prayed.
- 5.The Petitioner's prayer for corresponding leave marked as abandoned.
- 6.Leave granted to the Respondents to file further affidavits as prayed.
- 7.The 1st Respondent granted 14 days to respond to the Petitioner's affidavits.
- 8.The 2nd and 3rd Respondents granted 14 days from the date of the ruling.
- Jurisdiction invoked
- Article 87 of the Constitution; Elections Act; Elections (Parliamentary and County Elections) Petition Rules, 2017 (election petition assigned to magistrates by the Chief Justice per Gazette Notice No. 9060 of 15th September, 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesborn Arao Nyakundi v Fred Nyachae Omayio & 2others [2017] KEMC 81 (KLR)", Case Analysis (2017). Election Petition No 02 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/81/eng@2017-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.