Eunice Machuhi
30 April 2008
Nairobi — The Electoral Commission of Kenya wants a poll petition filed against one of its officers struck out.
ECK through its lawyer Gikandi Ngibuini has asked that the petition filed by Garsen parliamentary loser Hussein Dado against area MP Danson Mungatana and Mr George Nyawa Mwadai, who was the returning officer, be dismissed on account of lack of personal service.
Present in court during the submissions were Ms Julie Aulo, representing Mr Dado, while Mr Cecil Miller and Mr Peter Wena appeared for the Garsen MP.
Mr Ngibuini told Mombasa High Court judge Mr Justice Leonard Njagi that although the petition was filed in time, the suit papers have never been presented to Mr Mwadai.
He added the petitioner did not attempt to effect personal service on the returning officer before placing a notice for substituted service in the newspaper.
The affidavit sworn by Mr Dado saying that he attempted to effect personal service was vague since it did not disclose the time and places he allegedly went to present the papers, Mr Ngibuini said.
"There are no indications that there were attempts to serve the petition. The law requires for publishing of the petition only after a failed attempt to effect personal service. In addition, a mere publication of the notice to petition fell short of publishing the entire petition as is required," he said. Hearing continues.
Mr Dado has filed an application for scrutiny of all documents used during the elections and wants the court to allow his application to inspect all the counterfoils, ballot papers and all the votes cast.
In his grounds for petition, Mr Dado claims that the ECK and the returning officer committed election offences by omitting to prepare accurate, complete and signed election returns.
Helicopter
In addition, Mr Dado alleges that on December 28, a police helicopter crashed at Gomesa and that some ballot papers and boxes retrieved by members of the public were destroyed without a proper audit.
Mr Dado got 4,741 votes against Mr Mungatana's 7,519.
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