Bench Bulletin - Issue 12 - Kenya Law Reports
Bench Bulletin - Issue 12 - Kenya Law Reports
Bench Bulletin - Issue 12 - Kenya Law Reports
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KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
admission to having been served the election petition - whether the appeal could be allowed on that ground- section 20<br />
(1) (a)National Assembly and Presidential Elections Act.<br />
The appellant, Dickson Daniel Karaba was one of the candidates in Kirinyaga Constituency<br />
during the Parliamentary elections held in December 2007 in which the 1st respondent,<br />
John Ngata Kariuki was declared the winner of that election by the returning officer the 2nd<br />
respondent James Kariuki Gitau.<br />
The appellant filed an election petition in which he averred that there were errors in counting<br />
of votes, omission of results from certain poll stations and erroneous tallying and re-tallying.<br />
He sought for orders for scrutiny and tallying of all votes cast in that constituency. By way<br />
of application, the 1st respondent sought to strike out the petition on the ground that he<br />
had not been served personally with the petition within twenty eight days after the date<br />
of publication of the results as required by section 20 (1) (a) of the National Assembly and<br />
Presidential Elections Act.<br />
The Hon. Mr. Justice<br />
P. N. Waki<br />
The High court was faced with<br />
conflicting affidavits regarding the service of the election<br />
petition. The court process server swore in his affidavit that he<br />
had served the 1st respondent as required by law. The process<br />
server’s affidavit was supported by an affidavit sworn by a car<br />
hire businessman, who knew the process server and the 1st<br />
respondent. On the other hand the 1st respondent swore an<br />
affidavit to the effect that he had not been served. The motion<br />
was set down for hearing, but in view of the conflicting factual<br />
information, counsel on both sides applied to cross-examine the<br />
deponents on the respective affidavits on record. However, at the<br />
resumed hearing only the 1st respondent was cross examined<br />
on his affidavit but his counsel declined to examine the court<br />
process server. The petition was consequently struck out on the<br />
ground that the petitioner had not discharged the burden of<br />
proof laid upon him in respect of service of the petition. Being<br />
aggrieved by that decision the appellant filed an appeal where<br />
he submitted that the failure by the 1st respondent to challenge<br />
the affidavits relating to service of process amounted to an admission of the facts. He further averred that if there were<br />
any doubts regarding the depositions before the court, the deponents ought to have been cross examined.<br />
Counsel for the 1st respondent asserted that there was no obligation to cross-examine the process server especially<br />
where there was other evidence to rebut the process server’s averments.<br />
Held:<br />
1. In view of the factual statements and the circumstances of this case it was desirable that the truth between the two<br />
versions of the affidavits be explored through cross examination. Only the 1st respondent was cross-examined and in<br />
the process he made material admissions which lent credence to the assertions of the process server.<br />
2. In view of the evidence presented to the trial court there was no doubt that the process server was at the location<br />
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<br />
respondent there and served him. The affidavit evidence of the process server, which was not challenged in crossexamination,<br />
that he made his way to the 1st respondent’s offices and served him in the manner he stated he did was<br />
believable.<br />
Appeal allowed.<br />
Advocates<br />
1. Mr. Wamae for the Appellant<br />
2. Mr. Mari for the 1st Respondent<br />
3. Mr. Arusei for the 2nd Respondent<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
57