Mbayi Sayyed Omsiritsa v Nancy Iyadi & 2 others [2017] KEMC 95 (KLR)
The bottom line
#A Kenyan election petition was struck out because it failed to disclose the full election results and the date they were declared.
What this practically means
#Executive summary
#Key legal issues
#Whether personal service of the petition on the applicant was effected on 18th September 2017
The court found the applicant was not personally served, based on cross-examination and inconsistencies in the process server's evidence, but service by advertisement on 21st September 2017 was within the 15-day period computed under Order 50 rule 8 of the Civil Procedure Rules.
The process server's evidence contained inconsistencies regarding the description of the applicant's home, and the applicant's testimony was preferred. Computation of time in line with Order 50 rule 8 of the Civil Procedure Rules showed the respondent had until 21st September 2017 to serve the petition since the other respondents had been duly served, and advertisement service on that date met the deadline.
Whether the advertisement of service complied with Rule 10(3) of the Elections Petitions Rules 2017
The advertisement did not comply, measuring 7cm by 8.5cm instead of the required minimum 10cm by 10cm, but the court declined to strike out the petition solely on that ground.
The court held it would be unjust to strike out the petition solely because the respondent opted to save on a few centimetres, given that service was otherwise proper and timely. Instead, the infringement was punished by an award of costs against the respondent, with the ends of justice dictating determination on merit — though the petition was ultimately struck out on other grounds.
Whether the petition disclosed the date of declaration of results and the full results as required by Rule 8(1)(c) & (d)
The petition failed to disclose the date of declaration and the full results, rendering it incurably defective, and was struck out.
The petitioner only referred to results of one polling station (Bulanda Primary School) and did not state the date of declaration. Following the Supreme Court in Ali Hassan Joho and the Court of Appeal in John Mututho v Jayne Kihara, the court held that the quantitative breakdown of votes and the date of declaration are mandatory; the date triggers computation of the 28-day filing period. Omission of these essential elements left the petition incomplete and incurably defective.
Legal principles established
#- A petitioner must disclose the full results of the election and the date of declaration of results in the petition; omission renders the petition incurably defective.
- Service by advertisement is an independent option, not a last resort after diligent attempts at personal service.
Court orders
#- 1.The petition be and is hereby struck out
- 2.Kshs. 100,000/- awarded as total instruction fees for the petition for the 1st and 2nd respondents
- 3.Kshs. 100,000/- awarded as total instruction fees for the petition and application for the 3rd respondent
- 4.All other incidental costs to be assessed and the total costs certified
- 5.A certificate of determination in accordance with section 86(1) of the Elections Act, No. 24 of 2011 to issue to the Chairperson of the Independent Electoral and Boundaries Commission, the Speaker of the County Assembly, Kakamega County and the Hon. Chief Justice of the Republic of Kenya
- Jurisdiction invoked
- Section 77 of the Elections Act and Rule 13 of the Election (Parliamentary and County) Petition Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbayi Sayyed Omsiritsa v Nancy Iyadi & 2 others [2017] KEMC 95 (KLR)", Case Analysis (2017). Butere Election Petition (Notice of Motion dated 9th October 2017) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/95/eng@2017-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.