Mohamed Mwinyimtwana Jahazi V Francis Cherogony & Another  EKLR
|Election Petition 30 of 1979||20 Jan 1982|
Sir James Wicks, Pritam Singh Brar, Surrender Kumar Sachdeva
High Court at Nairobi (Milimani Law Courts)
Mohamed Mwinyimtwana Jahazi v Francis Cherogony & Shariff Nassir Taib
Mohamed Mwinyimtwana Jahazi v Francis Cherogony & another  eKLR
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.
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.
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  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  20 SE 261
9. Prabhudas (N) & Co v Standard Bank  EA 670
10. Marsh v Marsh  AC 21
11. Abeid v Badbea  EA 598
12. Warburton v Loveland (1831) 2 Dow & Cl (HL) at p 187
13. Lall v Jeypee Investments Ltd  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  1 WLR 1299;  3 All ER 241
21. Devan Nair v Yong Yuan  LR 2 AC 31
22. Mudavadi v Kibisu  EA 585
23. R v Leicester Gaming Licensing Committee, Ex Parte Chine Times
27 May 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;  KLR 77
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
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
Messrs Kivuitu & Masike for Petitioner
Messrs Shields & Sharma & Miss Matu for First Respondent
Messrs Nagpal & Oraro for Second Respondent