Evans Nyambaso Zedekiah & Mabutu Nyakeriga v Independent Electoral and Boundaries Commission,Shem Nyanga’u & Mary Sally Keraa Alias Mary Sally Otara
Evans Nyambaso Zedekiah & Another V Independent Electoral And Boundaries Commission & 2 Others  eKLR
An election petition will be struck out for failure to effect service of the petition on the respondent and for failure to deposit security for costs with the court.
Evans Nyambaso Zedekiah and Mabutu Nyakeriga v Independent Electoral and Boundaries Commission and 2 others
Election Petition No. 10 of 2013
High Court at Kisii
R N Sitati, J
July 31 , 2013
Reported by Marietta Gachegu
The petitioners took over the petition originally filed by Ezekiel Onchieku, which challenged the election of the 3rd respondent in the case, as the Kisii County Woman Representative to the National Assembly following the general election held on March 4th 2013.
The 3 respondents filed applications by way of Notice of Motion to have the petition struck out on the grounds, inter alia that the petition was never served on the 3rd respondent and that deposit for security of costs was made 4 days outside the stipulated time.
What were the consequences of non-service on the respondent of an electoral petition?
Whether security by deposit was made in accordance with the law and if not what were the consequences of such non-compliance?
Whether failure by the petitioners to give particulars in the petition was fatal to the petition?
Electoral Law-election petition- service process whether the petition was effectively served on the 3rd respondent and if not what were the consequences of non-service- Constitution of Kenya, 2010, articles 50 (2) (c) 87(1)(2) and (3).
Electoral Law-election petition-security for costs-where the security for cost was deposited out of time-- whether security by deposit made out of time can be validated by the court- Constitution of Kenya 2010 articles 87(1)(2) and (3), 159 2(d)
Electoral Law-election petition-application to strike out petition for failure to comply with statutory form- Whether failure by the petitioners to give particulars in the petition was fatal to the petition – Constitution of Kenya articles 159 2(d)
Constitution of Kenya, 2010 Article 50 (2)(c) provides :-
Every accused person has the right to a fair trial which includes the right to have adequate time and facilities to prepare a defence.
Constitution of Kenya 2010 Article 87 provides:-
(1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission
(3) Service of a petition may be direct or by advertisement in a newspaper with national circulation.
Constitution of Kenya 2010 Article 159 (2) (d) provides:-
Justice shall be administered without undue regard to procedural technicalities.
The Elections Act No.24 Of 2011 section 77
(1) A petition concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Commission.
(2) A petition may be served personally upon a respondent or by advertisement in a newspaper with national circulation.
The Elections Act No.24 Of 2011 section 78 (2) and (3)
(1) A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this Part.
(2) A person who presents a petition to challenge an election shall deposit—
(a) one million shillings, in the case of a petition against a presidential candidate;
(b) five hundred thousand shillings, in the case of petition against a member of Parliament or a county governor; or
(c) one hundred thousand shillings, in the case of a petition against a member of a county assembly.
(3) Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent's costs
Rule 4 of the Election Rules states:-
(1) The overriding objective of these Rules is to facilitate the just, expeditious proportionate and affordable resolution of election petitions under the Constitution and the Act.
(2) The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions in the Rules, seek to give effect to the overriding objective specified in sub-rule (1).
(3)A party to an election petition or an advocate for the party shall have an obligation to assist the court to further the overriding objective and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.
Rule 5 of the Election Rules states:-
(1) For the purpose of furthering the overriding objective provided in rule 4, the court and all the parties before it shall conduct the proceedings for the purpose of attaining the following aims –
the just determination of the election petition; and
the efficient and expeditious disposal of an election petition within the timelines provided in the Constitution and the Act.
The petitioner had a choice between two modes of service of the petition: either to effect personal service or to effect service by way of advertisement in a newspaper which has national circulation. In the instant case, the petitioners chose to effect service personally yet they failed to serve the 3rd Respondent with the petition. The evidence contained in the affidavit of service of the process server was unconvincing and it was unlikely that the 3rd Respondent had been personally served with the petition as was alleged by the process server.
Service of the petition upon the respondent was not a matter of choice by the petitioners. It was a mandatory step that had to be taken by the petitioners as a prerequisite for a fair hearing of the petition as provided under the Constitution. Failure to serve the 3rd respondent denied her the opportunity and adequate time to prepare her defence.
The 3rd Respondent only got knowledge of the petition when the original petitioner went to her and informed her that he intended to withdraw the petition he had filed against her but mere knowledge on her part was not enough to discharge the petitioners from their Constitutional and statutory obligation of effecting service.
As a general principle in ordinary civil matters the courts aimed to sustain rather than terminate a suit through striking out of pleadings and that power was therefore exercised sparingly and cautiously. Election petitions were not ordinary suits as their outcome had economic and social effects on the public, particularly if the petition was successful and resulted in a by-election. The instant application to strike out was anchored on a fundamental right of the 3rd Respondent to be served with process within the stipulated time in accordance with the mandatory provisions of the law.
Prescriptions of procedure should not be a barrier to dispensing substantive justice but that principle of preferring merit over form was not immutable or indisputable. The failure by the petitioners to serve the petition upon the 3rd Respondent was not a mere technicality. That failure went to the root of the entire petition for without service the 3rd Respondent was denied her right to a fair hearing by being denied the opportunity and time to prepare her defence. The petitioners were under a mandatory duty to effect service of the petition upon the 3rd Respondent and having failed to do so, the petition could not stand.
Security for costs by deposit of money was not made by the petitioners within the requisite period of ten days set out in the statute. The deposit of security for costs was a substantive issue that went to the root of the proceedings as non-payment of the same deprived the court of the jurisdiction to deal with the matter further. That requirement for deposit of security for costs kept away those who frivolously filed cases with little or no chance of success and those who had no intention of paying the costs once they lost their cases.
The aim of the rules on election petitions was to ensure the efficient and expeditious disposal of the election petition within the timelines set by the Constitution and the Act. The petitioners were not entitled to the application of the overriding objective as they had flouted the law more by not seeking leave of the court to deposit the security out of time or offered an explanation for the delay. In light of the foregoing reasons there was no reason to validate the late deposit of security made by the Petitioners in the case.
Election Rules clearly set out the contents and form of an election petition that a petitioner had to comply with so as to give a chance to the Respondents to know what case they were faced with and how they might prepare their defence. Where material particulars were not included in the petition, then such a petition was fatally incompetent.
Application allowed. Petition struck out.
1.Ahmed, Amina Hassan v Returning Officer Mandera County & 2 others Election Petition No 4 of 2013 –(Applied)
2.Chelaite v Njuki & others (No 3) (2008) 2 KLR (EP) 209 –(Applied)
3.Cidi, Kumbatha Naomi v County Returning Officer Kilifi & 3 others Election Petition No 13 of 2013 –(Explained)
4.DT Dobie & Company (Kenya) Ltd v Muchina  KLR 1 –(Explained)
5.Dolal, Nasir Mohammed v Duale Aden Bare & others Election Petition No 28 of 2008 –(Followed)
6.Franco, Esposito v Amason Jeffah Kingi & 2 others Civil Appeal No 248 of 2008 –(Followed)
7.Franco, Esposito v Amason Kingi & 2 others Judicial Review Miscellaneous Petition No 292 of 2008 –(Applied)
8.Joho v Nyange & another (No 4) (2008) 3 KLR (EP) 500 –(Followed)
9.Karaba v Kariuki & 2 others  KLR 235 –(followed)
10.Karatina Garments Limited v Nyanarua  KLR 94 –(Mentioned)
11.Kibaki v Moi  1 EA 115 –(Followed)
12.Kibaki, Mwai v Daniel Toroitich Arap Moi Civil Appeal No 172 of 1999 –(Mentioned)
13.Kimanzi, Patrick Ngeta v Marcus Mutua Muluvi & 2 others Petition No 8 of 2013 –(Applied)
14.Kimutai v Lenyongopeta & 2 others  2 KLR 317 –(Explained)
15.MB Automobile v Kampala Bus Service  EA 480 –(Mentioned)
16.M’Mithiaru v Maore & others (No 2)  3 KLR (EP) 730 –(Followed)
17.Maro, Mohamed Odha v County Returning Officer Tana River & 3 others Election Petition No 15 of 2013 –(Explained)
18.Mohamed v Bakari & 2 others  2 KLR 196 –(Followed)
19.Mohamed, Abdikham Osman & another v Independent Electoral and Boundaries Commission & others Election Petition No 2 of 2013 –(Approved)
20.Mohamed, Fatuma Zainabu v Ghati Dennitah & 10 others Election Petition No 6 of 2013 –(Explained
21.Munyasia, Bernard Mwendwa v Charity Ngilu & others Election Petition No 1 of 2008 –(Mentioned)
22.Mututho v Kihara and 2 others  KLR 10 –(Applied)
23.Ng’ang’a & another v Owiti & another (No 2) (2008) 1 KLR (EP) 799–(Followed)
24.Odinga, Raila & 5 others v Independent Electoral and Boundaries Commission & 3 others Petition No 5 of 2013 –(Explained)
25.Omiti v Osebe & 2 others  1 KLR 115 –(Followed)
26.Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd  KLR 1 –(Explained)
1.Civil Procedure Act (cap 21) In general–(Interpreted)
2.Constitution of Kenya, 2010 articles 50(c); 87(1); 159(2)(d) –(Interpreted)
3.Elections Act, 2011 (Act No 24 of 2011) sections 76(1); 77; 78(1),(2)(b),(3); 86(1)–(Interpreted)
4.Elections (Parliamentary and County Elections) Petition Rules, 2013 (Act No 24 of 2011 Sub Leg) rules 4, 5, 10, 11(1); 13(1); 17; 20; 36–(Interpreted)
5.Interpretation and General Provisions Act (cap 2) section 59–(Interpreted)
6.National Assembly and Presidential Elections Act (Repealed) (cap 7) section 21–(Interpreted)
7.National Assembly (Powers and Priviledges) Act (cap 6) section 6–(Interpreted)
8.Presidential and Parliamentary Elections Regulations (cap 7 Sub Leg) –(Interpreted)
1.Mr Minda for the Petitioners
2.Mr Odhiambo Kanyangi for the 1st and 2nd Respondents
3.Miss Aron for the 3rd Respondent