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MagistrateOtherElection Petition No. 7 of 2017· [2018] KEMC 59 (KLR)

Paul Odhiambo Okello v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 59 (KLR)

Chief Magistrate's Court at Busia
23 January 2018
WCWilliam K. Chepseba
1,220 words in judgment
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The bottom line

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A Busia court struck out an entire election petition because the petitioner never properly served it on the respondents, rejecting claims that the lapse was a curable technicality.

What this practically means

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Executive summary

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This ruling of the Chief Magistrate's Court at Busia disposed of two interlocutory applications in an election petition: the Petitioner's application dated 7th December, 2017 and the 3rd Respondent's Notice of Motion dated 13th November, 2017 seeking striking out of the petition for non-compliance with section 77(2) of the Elections Act and the Election (Parliamentary and County Elections) Petition Rules, 2017 on form and service. The Petitioner sought to have the affidavits of Owiti C. Ochieng and Ouma Moses Pius struck out as evidence of perjury, the deponents summoned for cross-examination, and the Respondents' Reply struck out so the petition could proceed uncontested. The court framed the central issue as whether the petition dated 6th September, 2017 was served on the Respondents as required by Article 87(a) of the Constitution and section 77(2) of the Elections Act. On cross-examination the process server could not satisfactorily explain why the petition bore no signature, stamp or date from the 1st and 2nd Respondents, and why the 3rd Respondent did not date, sign or time-stamp the documents. The court concluded the petition was never served, held that a Respondent's filing of a response does not cure non-service, and rejected the Article 159(2) technicality argument because election petitions demand strict compliance with service rules. It further held the amended petition, filed without leave, was improperly on record. The Petitioner's application was dismissed; the 3rd Respondent's application was allowed; the petition and the amended petition were struck out with costs to the Respondents.

Key legal issues

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01

Service of the election petition

Holding

The Petitioner did not serve the Respondents with the petition; the omission is fatal and goes to the root of the petition

Reasoning

On cross-examination the process server failed to give a satisfactory explanation why the petition was not signed, stamped and dated by the 1st and 2nd Respondents, and why the 3rd Respondent did not date, sign and indicate the time of service. The Respondents' Reply showed they were responding to the Amended Petition, not the petition. The court concluded service was not effected.

p. 3
02

Whether Article 159(2) cures failure of service

Holding

No - failure of service in an election petition is not a procedural technicality curable under Article 159(2)

Reasoning

The Petitioner relied on Article 159(2) urging that non-service was a mere technicality. The court held that election petitions are special jurisdiction matters with specific service rules that must be strictly complied with, and failure of service cannot be cured by the overriding-objective provisions.

p. 3
03

Amended petition filed without leave

Holding

The amended petition filed without leave is improperly on record and was struck out

Reasoning

The 3rd Respondent submitted that the Amended Petition was served without leave of the court and was not properly on record. The court agreed that leave was required by the rules before filing the amended petition and struck it out with costs.

p. 3

Legal principles established

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  • Election petitions are matters of special jurisdiction with specific rules on service which must be strictly complied with, and failure of service is not a curable procedural technicality
  • A respondent's filing of a response to a petition does not cure or legalise failure of service
  • An amended petition filed without leave of the court is not properly on record

Court orders

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  1. 1.Dismissal of the Petitioner's application dated 7th December, 2017
  2. 2.Allowance of the 3rd Respondent's application dated 13th November, 2017 with a finding that the Petitioner did not serve the Respondents with the petition
  3. 3.Striking out of the petition dated 6/9/2017 with costs to the Respondents
  4. 4.Striking out of the amended petition filed without leave, with costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 87(a)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Elections Act, 2011Section 77(2)
  • Election (Parliamentary and County Elections) Petition Rules, 2017Rules 10 and 12(13)(4) and (a)

Cases cited (1)

  • Ayub J. Mwakesi vs Makomere Chritan Al & 2 Others (2008) eKLR
    (2008) eKLR
Jurisdiction invoked
Election Petition jurisdiction under the Constitution (Article 87(a)) and the Elections Act, 2011 (section 77) and the Election (Parliamentary and County Elections) Petition Rules, 2017

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, "Paul Odhiambo Okello v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 59 (KLR)", Case Analysis (2018). Election Petition No. 7 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/59/eng@2018-01-23

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