[2017] KEHC 1692 (KLR)
The court found that there was no concrete evidence supporting the service of certain affidavits, as the affidavit of service did not explain the absence of stamps or signatures, nor whether the documents were joined or presented for acknowledgment. However, the court accepted that there was evidence of service of...
Source-derived case information.
- Citation
- [2017] KEHC 1692 (KLR)
- Parties
- Applicant: Chris Munga N. Bichage; Applicant: Zaheer Jhanda; Applicant: James F. O Kenani; Respondent: I.E.B.C; Respondent: Julius Meja Okeyo; Respondent: Richard Nyagaka Tongi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Election Petition 12 & 10 of 2017
- Procedural Posture
- Election Petition / Ruling on Service of Documents
- Outcome
- Partial acceptance of service; deficiencies noted for certain affidavits.
- Judges
- AG Ndung'u
- Legal Topics
- Service of Process, Affidavit of Service, Burden of Proof, Cross Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chris Munga N. Bichage
Applicant
Zaheer Jhanda
Applicant
James F. O Kenani
Applicant
I.E.B.C
Respondent
Julius Meja Okeyo
Respondent
Richard Nyagaka Tongi
Respondent
Procedural Posture
Election Petition / Ruling on Service of Documents
Legal Issues
- 1 Whether there was proper service of affidavits and court documents on the parties in the consolidated election petition.
- 2 Whether the process server discharged the burden of proving service as required by law.
Ratio Decidendi
The court found that there was no concrete evidence supporting the service of certain affidavits, as the affidavit of service did not explain the absence of stamps or signatures, nor whether the documents were joined or presented for acknowledgment. However, the court accepted that there was evidence of service of the response to the petition by the 2nd Respondent, as shown by the presence of a stamp and signature from the relevant advocates. The attempt to disown the stamp and signature was unsuccessful due to lack of rebuttal evidence. The ruling thus partially upheld the validity of service for some documents while finding deficiencies in others, emphasizing the process server's burden...
Court Disposition
Partial acceptance of service; deficiencies noted for certain affidavits.
Orders
- Service of the response to the petition by the 2nd Respondent is accepted as valid.
- Service of affidavits of Joseph Oiruria Nyachae, John Ratemo, and the replying affidavit of the 2nd Respondent in petition No. 10 is not proved.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
ELECTION PETITION NO. 12 OF 2017
(CONSOLIDATED WITH ELECTION PETITION NO. 10 OF 2017)
IN THE MATTER OF ELECTIONS ACT, 2011
AND
IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTION) PETITION RULES, 2017
AND
IN THE MATTER OF THE ELECTION FOR MEMBER OF NATIONAL ASSEMBLY FOR NYARIBARI CHACHE CONSTITUENCY
BETWEEN
CHRIS MUNGA N. BICHAGE …….….…..…..………...... 1ST PETITIONER
ZAHEER JHANDA …………………………………..........2ND PETITIONER
JAMES F. O KENANI ………………………………..........3RD PETITIONER
VERSUS
I.E.B.C …………………………………………………... 1ST RESPONDENT
JULIUS MEJA OKEYO (RETURNING OFFICER) .…....2ND RESPONDENT
RICHARD NYAGAKA TONGI ………………………......3RD RESPONDENT
RULING
Where service of summons or any other court documents is in dispute, the onus is on the process server to prove the service.
Such prove is achieved by the filing of an affidavit of service and an inquiry through cross-examination if deemed necessary.
I have considered the affidavit of service and the cross-examination and re-examination of the process server Philip Kimutai Langat.
My findings are as follows;
1. There is no concrete evidence supporting the service of affidavits of Joseph Oiruria Nyachae, John Ratemo and the affidavit referred to in paragraph 4 of the affidavit of service (The replying affidavit of the 2nd Respondent filed in response to petition No. 10 and intended for use in this consolidated suit). No explanation is given in the affidavit of why the said documents are not stamped, whether they were joined together with the response as a single document and whether the recipient was asked to stamp and sign and he declined to do so.
2. There is evidence of service of response to the petition by the 2nd Respondent as discerned from the due stamping and signing on top thereon with the stamp of Ms Oguttu, Ochwangi, Ochwal & Co. Advocates and the spirited effort in cross-examination to disown the stamp and signature fails on account of lack of rebuttal evidence by way of affidavit which was neither sought nor provided.
Dated, Signed and Delivered in Kisii this 19th day of December, 2017
A. K. NDUNG'U
JUDGE