Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL 3. The appellant was arrested on 7th February 2007 at 3 p.m. The 24 hours period would have expired at 4 p.m. on 8th February 2007. One needed to consider how practicable it would have been to take the appellant to court at 4 p.m. on 8th February 2007. In all probability the courts sessions would by then have ended. The appellant was taken as soon as was reasonably practicable. The appellant’s constitutional rights were not therefore violated. Appeal dismissed. Mode of Service of an Election Petition Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others Court of Appeal at Nairobi Tunoi, Githinji & Waki JJ.A Civil Appeal 183 of 2008 May 7, 2010 Reported by Esther Nyaiyaki Onchana Case History An appeal from the ruling and order of the Election Court, High Court of Kenya at Kisii (Ibrahim, J) dated 11th July, 2008 in Kisii Election Petition No. 1 of 2008) The Hon. Mr. Justice P. K. Tunoi Election law – service – mode of service of an election petition – appeal – appeal against ruling by the High Court dismissing election petition on the ground that the petitioner had invoked the alternative mode of service under Section 20(1) (a) (iv) of the National Assembly and Presidential Elections Act without exercising first due diligence to serve the respondent personally – alternative mode of service having been effected within six days of filing the election petition - affidavit of service – High Court struck out the affidavit of service for having not been filed on time - whether an affidavit of service in an election must be filed in a prescribed manner – affidavit of service was filed after leave was granted by the court to file further affidavits to examine whether the 1st respondent had been served in accordance with the Act - whether the affidavit of service was erroneously struck out - Section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act Electoral law – service – mode service of an election petition - affidavit of service - whether the appellant’s affidavit of service dismissed by the High Court would have discharged the onus of showing on a balance of probability that the appellant exercised due diligence in serving the election petition – whether onus is on the petitioner to demonstrate that he exercised due diligence before invoking service through alternative mode of service – 1st respondent argued that the petitioner had ample time exercise due diligence before resorting to alternative means – whether the petitioner discharged the onus of showing diligence in serving the petition – due diligence – meaning of due diligence The appellant was a registered voter in Kitutu Masaba constituency. He challenged the declaration of the 1st respondent as the winner of that election through an election petition filed at the High Court. Service of the election petition on the 1st respondent was published in the Kenya Gazette and in a local daily newspaper. The High Court struck the petitioner’s affidavit of service annexed to his replying affidavit, for failure by the process server to cause the same to be filed in court. The affidavit of service having been struck out left the affidavit of the petitioner’s advocate which merely referred to the alternative mode of service and the effects of post election violence. Personal service was thus ruled out and consideration by the court was concentrated on whether due diligence to serve the 1st respondent as required under section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act had been satisfied. The court held that the petitioner could not embark on the process of service under section 20 (1) (c) (iv) until due diligence had been done to serve the 1st respondent personally. The petitioner appealed against that ruling. Held: 1. The process server’s affidavit of service held together the appellant’s petition and by striking out and exclusion of its contents brought the petition tumbling down. It was the very document which would have answered the question as to whether under section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act, the appellant exercised due diligence to effect personal service before resorting to alternative means of service. 2. The affidavit of service was part of the record as it had been filed pursuant to leave granted by the court for purposes of assisting the court to examine whether the 1st respondent had been served in accordance to the National Assembly and Presidential Elections Act. The superior court fell in error and failed to examine the very evidence that would have assisted it in establishing the truth of the disputed facts. 48 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL 3. The factual depositions of the process server, which were not challenged in cross-examination established on a balance of probability that the appellant discharged the onus of showing due diligence in serving the petition. Appeal allowed. Advocates 1. Mr. Nowrojee for the Appellant 2. Mr. A.B Shah for the 1st Respondent Interpretation of Electoral Laws and Regulations James Omingo Magara v Manson Onyongo Nyamweya & 2 others Court of Appeal at Kisumu Omolo, Tunoi & Githinji JJ.A Civil Appeal 8 of 2010 April 30, 2010 Reported by Esther Nyaiyaki Onchana Case History Being an appeal from the Judgment and Decree of the High Court of Kenya at Kisii (Musinga, J) delivered on the 17th December, 2009 and the Certificate of Determination of Election Petition signed and dated 17th December 2009 in H.C. Election Petition No. 3 of 2008 The Hon. Mr. Justice R.S.C. Omolo Election law – interpretation of statute - interpretation of electoral laws and regulations – the interpretation of electoral laws is aimed at conducting free and fair elections – circumstances when an election can be declared void - test to be applied by the court in determining validity of an election - meaning of free and fair elections – meaning of transparent elections – duty of the electoral body to promote free and fair election - Section 17A of the National Assembly and Presidential Elections Act - section 42A (c) of the Constitution Election law – election petition – appeal against High Court judgment – the High Court having nullified the election of the appellant as the Member of Parliament for the South Mugirango constituency on grounds that the election was not transparent, free and fair – the appellant having garnered the highest number of votes during the scrutiny and recount of votes – failure by the court to find the appellant guilty of an electoral offence - scrutiny and recount of the votes disclosed numerous irregularities among them unsigned unauthenticated Forms 16A, variation between Forms 16A and 17A, missing ballot boxes, broken ballot seals - the significance of Forms 16A – the effect of the failure by the presiding officer to sign or stamp Forms 16A without reasonable cause - Regulations 35A (5), 39, 40 (1) of the Presidential and Parliamentary Regulations Election law – conduct of elections – non-compliance with the law – the scope of section 28 of the National Assembly and Presidential Elections Act - section 28 of the National Assembly and Presidential Elections Act providing that irregularities in the conduct of an election will not vitiate the result unless the irregularities were so serious that the election was not in accordance with principles laid in the law or the irregularities affected the result- appellant asking the court to invoke section 28 on grounds that the acts alleged against the electoral body that conducted the elections did not affect the overall results of the elections – whether the anomalies found in Forms 16A and17A were so pervasive as to affect the entire election - whether these anomalies could be cured by section 28 of the National Assembly and Presidential Elections Act – whether election was conducted in accordance with principles laid down by the electoral law The appellant, James Omingo Magara, was declared the winner of the parliamentary election held on 27th December, 2007 after garnering the highest number of votes. The elections were conducted by the defunct Electoral Commission of Kenya (ECK) which in this suit was taken over by the 3rd respondent, Interim Independent Electoral Commission of Kenya (IIEC). The 1st respondent, Manson Onyongo Nyamweya, one of the candidates who vied for the parliamentary elections, filed a petition in the Election Court in Kisii, where he alleging that appellant was guilty of various electoral offences and that the returning officer and ECK had breached the electoral law by committing numerous electoral irregularities. The High Court rejected the allegations relating electoral malpractices made against the appellant. However the court made a finding that, the presiding officers and returning officer committed many irregularities among them noncompliance with the conditions relating to Forms 16A and 17A provided for under Regulations 35A (5), 39 and 40 (1) of the Presidential and Parliamentary Regulations. The court nullified the elections because ECK and its agents had not conducted the election in a transparent free and fair manner. Issue 12: April-June 2010 49
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