Jahazi v Cherogony

High Court, at Nairobi January 20, 1982

Wicks CJ, Sachdeva J & Brar J

Election Petition No 30 of 1979

Election Petition – form of – petition not signed by petitioner in person –petition signed by petitioner’s advocate – whether failure of petitioner to sign fatal to petition - National Assembly Elections (Election Petition) Rules rule 4(3).

Statutes - interpretation of - National Assembly Elections (Election Petition Rules) rule 4(3) - petition not signed by Petitioner - petition purporting to be signed by petitioner’s advocate - rule stating that petition shall be signed by petitioner - whether rule mandatory - Civil Procedure Rules - whether applicable.

The respondents to this election petition raised a preliminary objection, of which notice had been given to the petitioner, that the omission by the petitioner to have sign the petition personally (and not by his advocate) as required by rule 4(3) of the National Assembly Elections (Election Petition) Rules was fatal to the petition, that consequently, no valid petition was before the court and that the court had no jurisdiction to examine the validity of the election. It was submitted on behalf of the petitioner, inter alia, that the omission to comply with the rule was not fatal and that the petitioner should not be denied justice on account of it as it was a technical oversight which related only to the form of the petition and not its substance.

Held:

1. In order to determine the intention and purport of legislation, it is imperative to look at the legislation as a whole. Where the National Assembly Elections (Election Petition) Rules intend certain acts to be done by a petitioner alone, it is stated so expressly, and where it is intended that certain acts shall be done by advocates or agents, that is also stated expressly.

2. As the matter of signature to a petition had been specifically dealt with in the National Assembly Elections (Election Petition) Rules, the Civil Procedure Rules did not apply to it.

3. The provision of rule 4(3) of the National Assembly Elections (Election Petition) Rules that a petition shall be signed by the petitioner is mandatory and not a mere formality.

4. By not signing the petition, the petitioner did not take responsibility of the allegations made in the petition against the second respondent and the petitioner, therefore, contrary to equity, assumed no burden should the allegations prove to be unfounded.

5. As the petition had not been signed by the petitioner, it was not properly before the court.

Petition dismissed.

Cases

1. Ibrahim Salim Abdalla Mwaruwa v Cherogony and Said Hemed Said Election Petition No 31 of 1979 (unreported)

2. Okova v Nyarangi & Tsuma Election Petition No 3 of 1970 (unreported)

3. Karanja v Kabugi and Magugu Election Petition No 30 of 1981(unreported)

4. In re Porter’s Petition 31 CLR 600

5. In re Prince Blucher [1931] 2 Ch D 70

6. In re Whitney Partners Ltd (1886) 32 Ch D 337

7. Hyde v Johnson (1836) 2 Bing NC 776

8. Orpen v Calliers [1903] 20 SE 261

9. Prabhudas (N) & Co v Standard Bank [1968] EA 670

10. Marsh v Marsh [1945] AC 21

11. Abeid v Badbea [1968] EA 598

12. Warburton v Loveland (1831) 2 Dow & Cl (HL) at p 187

13. Lall v Jeypee Investments Ltd [1972] EA 512

14. In re Wallace (1884-85) 14 QB 22

15. Abdalla Walji Hirji v Dhanji Bhimji & Co (1919-1921) 8 EALR 206

16. Ex Parte Hobson 70 LT 817

17. De Souza v De Souza (1938) 5 EALR 22

18. R v Garreth-Pegge & Others (1911) 104 LT 649

19. Virji Mawji v Harji Karson Patel and Vishram Karsan Civil Appeal No 8 of 1981(unreported)

20. R v Pontypool Gaming Licensing Committee, ex parte Risca Cinemas Ltd [1970] 1 WLR 1299; [1970] 3 All ER 241

21. Devan Nair v Yong Yuan [1967] LR 2 AC 31

22. Mudavadi v Kibisu [1970] EA 585

23. R v Leicester Gaming Licensing Committee, Ex Parte Chine Times

27 May 1971; [1971] 2 All ER 1329

24. Williams v Tenby Corporation (1879) 5 CPD 135

25. Destro & Others v Attorney General Civil Case No 2474 of 1979; [1980] KLR 77

Texts

1. Maxwell, Sir P.R., (1969) The Interpretation of Statutes, London: Sweet & Maxwell, 12th Edn pp 1, 2

2. Burke, J., (1977) Jowitt’s Dictionary of English Law, London: Sweet &

Maxwell Vol II p 1699

3. Burke, J., (1977) Jowitt’s Dictionary of English Law London:Sweet &

Maxwell 2nd Edn Vol I p 726

Statutes

1. Constitution of Kenya section 44, 44(3)

2. National Assembly and Presidential Elections Act (cap 7) sections 19, 20, 22, 23, 23(1)(d), 24

3. National Assembly Elections (Election Petition) Rules (cap 7 Sub Leg) rules 4(3), 4(4), 9, 10, 15, 22(1), 29(4)

4. Civil Procedure Act (cap 21)

5. Civil Procedure Rules (cap 21 Sub Leg) order III rule 1

6. Commonwealth Electoral Act 1918-1922 [AUSTRALIA] sections 185, 187

7. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301)

8. Summary Jurisdiction Act 1848 [UK]

9. Gaming Act 1968 [UK]

10. Interpretation and General Provisions Act (cap 2) section 33

Advocates

Messrs Kivuitu & Masike for Petitioner

Messrs Shields & Sharma & Miss Matu for First Respondent

Messrs Nagpal & Oraro for Second Respondent

Muchoki Irima v The Republic

Musyoka Kamuti v The Republic

Marimum Muriu v The Republic

High Court, Appellate Side, Nairobi 30th September; 5th October 1977

Sir James Wicks CJ & Sachdeva J

Criminal appeal - petition - grounds of appeal - specification of particulars - inadequacy of grounds expressed in general terms - incorrect use of term “memorandum of appeal” - Criminal Procedure Code (cap 75), section 350(1), (2).

The term “memorandum of appeal” should not be used in connection with an appeal under the Criminal Procedure Code, section 350(1), which requires an appeal to be made in the form of a petition in writing.

The requirement that every petition of appeal should contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred (section 350 (2)) is not satisfied by drafting grounds of appeal in general terms, for example that the prosecution has not proved its case beyond reasonable doubt or that the prosecution has not proved all the essential elements of the charge.

Mutemba s/o Rutehenda v R (1953) 20 EACA 276 applied.

R v McNair (1909) 2 Cr App Rep 2, R v Simpson (1909) 2 Cr App Rep

128, Aladesura v R [1956] AC 49, PC, Riano s/o Lenalaimer [1960] EA 1960, EACA and Osongo v The Republic [1972] EA 170, EACA, considered.

Cases referred to in judgment:

Aladesura v R [1956] AC 49, [1955] 3 WLR 515, 39 Cr App Rep 184, PC.

Mutemba s/o Rutehenda v R (1953) 20 EACA 276.

Okeno v The Republic [1972] EA 32, EACA.

Osongo v The Republic [1972] EA 170, EACA.

R v McNair (1909) 2 Cr App Rep 2; 25 TLR 228.

R v Simpson (1909) 2 Cr App Rep 128.

Riano s/o Lenalaimer v R [1960] EA 1960] EACA

Appeals

The appeals of Muchoki Irima (Criminal Appeal No 495 of 1977), Musyoka Kamuti (Criminal Appeal No 496 of 1977) and Marimum Muriu (Criminal Appeal No 497 of 1977) from their convictions for stock-theft in the Resident Magistrate’s Court, Kitui were consolidated. When the appeals came on for hearing on 30th September 1977, the High Court quashed the convictions and substituted convictions for simple theft. The Court, however, reserved its reasons. The facts are set out in the judgment of the court.

Ndeto Mututo for the Appellant.

AR Rebelo senior State counsel for the Republic.

Cur adv vult.