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LEGAL BRIEF | CASE OF THE WEEK
 

SERVICE OF ELECTION PETITION ON SECRETARY DOES NOT CONSTITUTE VALID SERVICE

Reported By Nicholas Okemwa,
April 2008
Nairobi Kenya.
Titus Kiondo Muya v Peter Njoroge Baiya & 2 others [2008] eKLR (www.kenyalaw.org)
High Court at Nairobi
Justice Alnashir Visram
May 7th 2008

Where personal service which is the best form of service in all areas of litigation, is not possible after due diligence, other forms may be resorted to. Due diligence requires some kind of a continual and consistent effort to accomplish the objective.

On Wednesday last week, Justice Visram struck out an Election petition filed by Mr. Titus Muya challenging the validity of the election of the MP for Githunguri, Hon. Peter Baiya. The petition presented on 28th January, 2008, sought a declaration that the election of the Githunguri MP was null and void.

The application challenging the petition was based on the premise of want of service in accordance with the law. The grounds adduced were that the petition was not served upon the MP either personally or at all within the mandatory 28 days after the date of the publication in the Kenya Gazette on 30th December, 2007 of the results of the Parliamentary election and that the service of the petition vide the Kenya Gazette published on 29th January, 2008 was invalid.

The issue canvassed extensively before the court was whether the petition was served on the Githunguri MP in accordance with the law. The MP claimed that he was never actually served with the petition but found out about it from a constituent on 1st February, 2008. Mr. Muya, on the other hand, said that the process server, Mr Makau, effected service on the MP by leaving a copy of the petition with the latter’s secretary at his law office in Kiambu. Mr Makau stated that he went to the MP’s law office at Kiambu at 2.30 pm on 28th January, 2008, and not finding him there, he moved around Kiambu town looking for him. He failed to find him, and went back to the law office at 4.00 pm where he left the said documents.

First, the court deliberated on the question whether the petition was presented within the stipulated time frame. Section 20 (1) of the National Assembly Elections Act requires that the petition be “presented” and “served” within 28 days of the publication of the election result in the Kenya Gazette. That publication was done on 30th December, 2007, and so the last day, the 28th day, was actually 27th January, 2008. However, since the 27th was a Sunday, and the provisions of the Interpretation and General Provisions Act provide that Sundays or official non-working are not to be computed, the court found that the last day of presenting the petition was the 28th of January and therefore held that the petition was validly presented.

Secondly, the court proceeded to inquire on the issue of service. It took cognizance of several Court of Appeal decisions which dealt with question of service of election petitions. In Kibaki vs Moi the Court of Appeal stated that while section 20 (1) (a) of the Act does not prescribe any mode of service, in such circumstances, the courts must go for the best form of service which is personal service and that unless Parliament has itself specifically dispensed with the need for personal service, the courts must insist on such service.

Later, the Court of Appeal in Abu Chiaba Mohamed vs Mohamed Bakari went on further to state that where personal service which is the best form of service in all areas of litigation, is not possible, other forms may be resorted to. It further opined that to say Members of Parliament are a different breed of people and different rules must apply to them as opposed to those applicable to other Kenyans cannot support the principle of equality before the law.

Further, the court also referred to the recent decision in Mwita Wilson Maroa vs Gisuka W. Machage & Others where the court stated that personal service is “actual physical service”.

A recent amendment to the Act in 2007 that allows for alternative form of service should it become impossible to effect personal service did not escape the courts attention. Sub- paragraph (iv) of section 20 now provides that where after “due diligence” it is not possible to effect service under paragraphs (a) and (b), the presentation may be effected by the publication in the Gazette and in one English and one Kiswahili local daily newspaper with the highest national circulation in each case.

Mr Mwenesi, who appeared for Mr. Muya also raised the issue of the MP’s non -compliance Rule 10 of the Election Rules which requires an elected person to give an address in Kenya to the Registrar of the High Court at which notices addressed to him may be left. He was of the view that had the MP complied with this, the petition would have been served on time. However, he acknowledged that the Court of Appeal in Kibaki vs Moi held that Rule 10 was not couched in mandatory terms

Findings
After evaluating the evidence, Justice Visram stated that he was inclined to believe the testimony of the Githunguri MP for two reasons: First that the process server failed to identify the name of the secretary with whom he left the documents which was very least he should have done, if indeed he left the documents with someone. Secondly, he should have sworn and filed an affidavit of service immediately which he did not.

The court further stated that even if the process server indeed left the documents with the MP’s secretary at his office, it did not constitute personal service, as there was no evidence that the unnamed secretary was indeed either the MP’s secretary, or that she had authority to accept service of court process. The court relied on the Court of Appeal decision in James Nyamweya vs Cosmos F. C. Oluoch where it was said that service on an agent under the election petition rules is not proper or valid.

The court then concluded that the petition was not served personally upon the Githunguri MP within the time frame prescribed by the law.

It also found to that there was no evidence of “due diligence” required under section 20 (a) (iv) of the Act before that section could be invoked to serve the petition in the mode specified therein. It opined that going to the MP’s law office once, and then “moving around” Kiambu town the same afternoon, could hardly qualify as “due diligence”. Due diligence requires some kind of a continual and consistent effort to accomplish the objective.

Finally, the court stated that compliance with rule 10 was not mandatory and proceeded to strike out the petition.

 
LEGAL BRIEF
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COURT REVERSES DECISION ON MUTHURWA BUS STATION

Reported by Monica Achode
REPUBLIC v PERMANENT SECRETARY MINISTRY OF LOCAL GOVERNMENT & 4 others Ex-parte IMMACULATE TRANSPORTERS LTD & 17 others [2008] eKLR (www.kenyalaw.org)
High Court at Nairobi
J. G. Nyamu (J)
May 5, 2008

Justice John Nyamu on the 5th of May this year gave a ruling setting aside an earlier order given on the 31st of March 2008 by a fellow judge, which granted leave to the applicants to file a substantive application for several relief's. The High Court in the earlier application had also ordered that the leave granted was to operate as a stay of the decision reached by the respondents.

The applicants among them, Bernard Goko, Elizaphan Wahome, Duncan Ngugi, Michael Kinyua and Joe Macharia, had applied to have their matter certified as urgent and for it to be heard instantly. They also sought leave to apply for a judicial review order to quash the decision of the respondents barring several motor vehicles belonging to the applicant from entering the Central Business District area in Nairobi and from using Landies road. Among the cars barred were motor vehicle registration numbers KAL 560 C, KBA 009 C, KAQ 910 U, KAT 860 U and KAN 514 H. The applicants further wanted to bar the respondents from continuing to block the said motor vehicles from entering the C.B.D or using certain routes.

At the same time, the respondents who were named as, the Permanent Secretary Ministry of Local Government, the Transport Licensing Board, the Hon. Attorney General, the City Council and the Commissioner of Police, brought an application to set aside the order issued on 31st March 2008. The respondents put forward several grounds among them that their decision ordering the passenger vehicles to drop and pick up passengers at Muthurwa market was lawful having been taken through all the statutory requirements prior to being effected. It was their contention that the decision had been reached through a council resolution. This had been followed by the ministerial approval which had been gazetted on the 20th of March 2008 in the Kenya Gazette Notice Supplement Number 21 vide Legal Notice No. 37.
Council By-Laws

The City of Nairobi (Omnibus Stations) Amendment By-Laws 2008 at section 23 clearly designated special parking spaces for all vehicles plying route number 58. This amendment was operationalizing an earlier By-Law, City Council Of Nairobi (Matatu Termini) By-Laws 2007 section 9 which provided that the Council could from time to time declare any area within the City to be Matatu terminus, and that the terminus declared in accordance with these by-laws would indicate the route number of the matatus to use the terminus. The matatu owners through their counsel responded by submitting that section 72A(j) dealt with parking, whereas the issue before the court was where matatus plying route 58 were to terminate their services. They also contended that under the Nairobi (Matatu Termini) By-Laws 2007 no parking was allowed and that the vehicles were to be on the move at all times. It was their stand that the Traffic Act regulated parking.

Public Interest
The matatu owners felt that it was in the greater public interest to have the stay order continue because the traffic situation would be chaotic if the matatus were not allowed back into the C.B.D. It was also their contention that the orders were in the interest of the majority vehicle owners instead of favoring a few by setting them apart. They claimed that the three operators who had been allowed to ply the C.B.D had been favored and this constituted discrimination of the other operators, including the applicants. Related to this had been the issue of licences issued to the applicants for a period of one year by the Transport Licensing Board on the basis of known routes, a result of which was that their legitimate expectation to so operate throughout the whole year had been thwarted. Further, the applicant felt that sufficient notice had not been provided, contrary to the rules of Natural Justice.

Court Decision
On the issue of notice the High Court felt that in retrospect it was to be viewed from the stand point of the due process provisions relating to the passing and making of laws as set out under section 201 of the Local Government Act. It was the Courts view that attention of the previous court had not been drawn to this section and was instead informed that the respondents had made an oral decision. On this, the court held that the failure to disclose the existence of the By-Laws as the real subject matter constituted a serious non-disclosure on the part of the matatu owners which would have affected the grant of orders they had sought. Justice Nyamu also found on the claim of legitimate expectation that the court had not been adequately briefed on how this had been resolved. Further, he held that there had been no decision under attack at the time of the grant of the order for leave and stay. Instead what had formed the so called decision had been the By-Laws L.N 37/ 08, which were in turn not brought to the attention of the Court then.

Justice Nyamu was of the opinion that, had the attention of the Court hearing the matter at the time been drawn to the By-Laws, the chances of the applicants succeeding on obtaining those orders would have been apparently non-existent. The High Court referred to various decided cases in ruling on the issue of material non-disclosure. The cases of Kenya Bus Service versus. Republic and Justus Nyangaya versus Republic reiterated the Courts stand that leave was only provisional and that it could be set aside for material non-disclosure or if wrongly entered. At the leave stage the Court grants or refuses leave by answering the question whether or not an applicant is likely to succeed at the second stage. It was his opinion that the leave and stay would not have been granted on the same terms had the By-Laws been exhibited. Moreover, the courts discretion could have been substantially affected by the existence of the By-Laws and more so, as regards the part of the order for leave operating as stay.

Concerning the issue of public interest, Justice Nyamu ruled that on a tentative basis there could not be a greater public interest concerning traffic matters than achieving the smooth flow of traffic, order and discipline on the roads. It was for these reasons that the High Court set aside that particular part of the order given on 31st March 2008 by the Vacation Judge directing that leave operate as stay. However the decision with regard to leave to apply for review was left intact in view of the possible contest on licences and the arguments on legitimate expectation.

 
LEGAL BRIEF | GAZETTE AND LEGAL NOTICES
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CX No. 38 – 9th May, 2008

GAZETTE NOTICE NO. 3775
THE CONSTITUTION OF KENYA
NATIONAL LEGAL AID (AND AWARENESS) PROGRAMME

APPOINTMENT

PURSUANT to paragraph 4(a) of Gazette Notice No. 11598 of 2007, the Minister for Justice and Constitutional Affairs appoints-

ANNE ATIENO AMANDI

to be the National Co-ordinator of the National Legal Aid (and Awareness) Programme, for a period of three (3) years, with effect from 2nd May, 2008.

Dated the 2nd May, 2008.

MARTHA KARUA,
Minister for Justice, National Cohesion and Constitutional Affairs.



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