Nicholas Okemwa
12 May 2008
Nairobi — Titus Kiondo Muya v Peter Njoroge Baiya & 2 others [2008] eKLR
(www.kenyalaw.org)
High Court at Nairobi
Justice Alnashir Visram
Last Wednesday, Mr Justice Visram struck out a petition challenging the election of Githunguri MP Peter Baiya.
The petition by Mr Titus Muya was struck out due to want of service.
The grounds adduced were that the petition was not served upon the MP either personally or at all within the mandatory 28 days after the date of publication in the Kenya Gazette on December 30, 2007, of the results of parliamentary election.
The issue canvassed extensively before the court was whether the petition was served on the Githunguri MP in accordance with the law. The MP claimed he was never actually served with the petition but found out about it from a constituent on February 1, 2008.
Mr Muya, on the other hand, said the process server, a Mr Makau, effected service on the MP by leaving a copy of the petition with the latter's secretary at his law office in Kiambu.
Mr Makau stated he went to the MP's law office at 2.30pm on January 28, 2008, and since he did not finding him there, he moved around Kiambu town looking for him. He failed to find him and went back to the law office at 4pm where he left the said documents.
Time frame
First, the court deliberated on the question whether the petition was presented within the stipulated time frame. Section 20 (1) of the National Assembly Elections Act requires that the petition be "presented" and "served" within 28 days of the publication of the election result in the Kenya Gazette. Secondly, the court proceeded to inquire on the issue of service. It took cognizance of several Court of Appeal decisions which dealt with question of service of election petitions.
In Kibaki vs Moi, the Court of Appeal stated that while section 20 (1) (a) of the Act does not prescribe any mode of service, in such circumstances, the courts must go for the best form of service which is personal service and that unless Parliament has itself specifically dispensed with the need for personal service, the courts must insist on such service.
Later, the Court of Appeal in Abu Chiaba Mohamed vs Mohamed Bakari went on further to state that where personal service which is the best form of service in all areas of litigation is not possible, other forms may be resorted to.
Further, the court also referred to the recent decision in Mwita Wilson Maroa vs Gisuka W. Machage & others where the court stated that personal service is "actual physical service".
A recent amendment to the Act in 2007 that allows for alternative form of service should it become impossible to effect personal service did not escape the court's attention. Sub-paragraph (iv) of section 20 now provides that where after "due diligence" it is not possible to effect service under paragraphs (a) and (b), the presentation may be effected by the publication in the Kenya Gazette and in one English and one Kiswahili local daily newspaper with the highest national circulation in each case.
Mr Stephen Mwenesi, who appeared for Mr Muya, also raised the issue of the MP's non-compliance Rule 10 of the Election Rules which requires an elected person to give an address in Kenya to the Registrar of the High Court at which notices addressed to him may be left.
He was of the view that had the MP complied with this, the petition would have been served on time.
Two reasons
After evaluating the evidence, Mr Justice Visram stated that he was inclined to believe the testimony of the Githunguri MP for two reasons: First that the process server failed to identify the name of the secretary with whom he left the documents which was very least he should have done, if indeed he left the documents with someone. Secondly, he should have sworn and filed an affidavit of service immediately which he did not.
The court further stated that even if the process server indeed left the documents with the MP's secretary, it did not constitute personal service, as there was no evidence that the unnamed secretary was indeed either the MP's secretary, or that she had authority to accept service of court process.
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