Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Civil Practice and Procedure – stay of execution – application for stay of execution of a judgment and decree by the High Court – application grounded under sections 3A & 3B of the Appellate Jurisdiction Act – applicant having disobeyed an earlier order by the High Court to deposit security in an interest earning account – overriding objective of the Appellate Jurisdiction Act- whether the applicant could rely on the overriding objective having failed to comply with the High Court’s ruling – notice of appeal relating to the main judgment and not the High Court’s ruling - whether applicant could rely on the overriding objective provisions having disobeyed the High Court’s ruling – whether non-compliance with the High Court ruling had a bearing on the application before the appellate court – Rule 5 (2) (b) Court of Appeal Rules and sections 3A & 3B of the Appellate Jurisdiction Act The applicant, Messrs Hunker Trading Company Limited, had applied to the High Court for a stay of execution of the judgment and decree in favour of the respondent, Elf Oil Kenya Limited. The High Court granted the stay but instructed the applicant to deposit security in interest earning account to be opened in the joint names of the applicant’s and respondent’s advocates. However, the order subsequently lapsed without compliance by the applicant. At a later stage, the applicant under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5 (2) (b) of the Court of Appeal Rules made an application to the Court of Appeal seeking for a stay of execution of the judgment and decree of the High Court. The notice of appeal before the appellate court was directed against the main judgment delivered by the High Court but it was not against the court’s ruling which had ordered the applicant to deposit security. The Court of Appeal considered whether non-compliance with that High Court ruling had a bearing on the provisions of sections 3A and 3B of the Appellate Jurisdiction Act. The appellate court chose the call the overriding objection in civil litigation provided under The Hon. Mr. Justice E. M. Githinji section 1A of the Civil Procedure Act and sections 3A and 3B of the Appellate Jurisdiction Act ‘the Oxygen Principle (O2 principle)’ Held: 1. The applicant having admitted to having failed to comply with order of stay by the High Court order, the Court of Appeal found the applicant to be in breach of section 1A (3) of the Civil Procedure Act and section 3A (3) of the Appellate Jurisdiction Act. 2. The fact that the order had since lapsed had in no way eroded the relevance of the disobedience of the order to the operation of the overriding objective. 3. The thrust of applicant’s application to the appellate court under section 3A was substantially to seek similar orders to those he was granted in the superior court and disobeyed. Under section 1A (3) the applicant had a duty to obey all court processes and orders. Going to the Court of Appeal having abused the process in the superior court was a clear violation of the overriding objective of civil litigation. 4. As the applicant did not appeal against the order of stay by the High Court for reasons of being onerous or unjust but instead just ignored it, the application fell outside the provisions of Rule 5(2) (b) and section 3B and was therefore incompetent. Application dismissed. Service in an Election Petition Dickson Daniel Karaba v John Ngata Kariuki & 2 others Court of Appeal at Nairobi Tunoi, Waki & Aganyanya JJ A March 19, 2010 Reported by Esther Nyaiyaki Onchana Case History An appeal from the ruling and order of the High Court of Kenya at Nyeri (Kasango, J) dated 28th May, 2008 in H.C. Election Petition No. 1 of 2008 Election law – service - service of an election petition – appeal against dismissal of an election petition by the High Court on the ground that service had not been conducted within the requisite period after publication of results – production of conflicting evidence before the High Court through conflicting affidavits regarding the service of the election petition - appellant’s process server swearing in an affidavit that the election petition had been served within the given period of time –1st respondent also swearing in an affidavit that the service of election of election petition as alleged by the process server did not take place – parties whether failure by the 1st respondent to cross examine the process server amounted to 56 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL admission to having been served the election petition - whether the appeal could be allowed on that ground- section 20 (1) (a)National Assembly and Presidential Elections Act. The appellant, Dickson Daniel Karaba was one of the candidates in Kirinyaga Constituency during the Parliamentary elections held in December 2007 in which the 1st respondent, John Ngata Kariuki was declared the winner of that election by the returning officer the 2nd respondent James Kariuki Gitau. The appellant filed an election petition in which he averred that there were errors in counting of votes, omission of results from certain poll stations and erroneous tallying and re-tallying. He sought for orders for scrutiny and tallying of all votes cast in that constituency. By way of application, the 1st respondent sought to strike out the petition on the ground that he had not been served personally with the petition within twenty eight days after the date of publication of the results as required by section 20 (1) (a) of the National Assembly and Presidential Elections Act. The Hon. Mr. Justice P. N. Waki The High court was faced with conflicting affidavits regarding the service of the election petition. The court process server swore in his affidavit that he had served the 1st respondent as required by law. The process server’s affidavit was supported by an affidavit sworn by a car hire businessman, who knew the process server and the 1st respondent. On the other hand the 1st respondent swore an affidavit to the effect that he had not been served. The motion was set down for hearing, but in view of the conflicting factual information, counsel on both sides applied to cross-examine the deponents on the respective affidavits on record. However, at the resumed hearing only the 1st respondent was cross examined on his affidavit but his counsel declined to examine the court process server. The petition was consequently struck out on the ground that the petitioner had not discharged the burden of proof laid upon him in respect of service of the petition. Being aggrieved by that decision the appellant filed an appeal where he submitted that the failure by the 1st respondent to challenge the affidavits relating to service of process amounted to an admission of the facts. He further averred that if there were any doubts regarding the depositions before the court, the deponents ought to have been cross examined. Counsel for the 1st respondent asserted that there was no obligation to cross-examine the process server especially where there was other evidence to rebut the process server’s averments. Held: 1. In view of the factual statements and the circumstances of this case it was desirable that the truth between the two versions of the affidavits be explored through cross examination. Only the 1st respondent was cross-examined and in the process he made material admissions which lent credence to the assertions of the process server. 2. In view of the evidence presented to the trial court there was no doubt that the process server was at the location of the offices of the 1st respondent at the time he swore he was, the only issue being whether or not he met the 1st respondent there and served him. The affidavit evidence of the process server, which was not challenged in crossexamination, that he made his way to the 1st respondent’s offices and served him in the manner he stated he did was believable. Appeal allowed. Advocates 1. Mr. Wamae for the Appellant 2. Mr. Mari for the 1st Respondent 3. Mr. Arusei for the 2nd Respondent Issue 12: April-June 2010 57
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Bench Bulletin - Issue 12 - Kenya Law Reports

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