[2017] KEHC 1704 (KLR)
The court found that, given the disputed nature of the stamp and signature on the alleged served documents and the seriousness of the allegations regarding service, it was necessary to conduct an inquiry into whether service was properly effected. The court held that the interests of justice required the process...
Source-derived case information.
- Citation
- [2017] KEHC 1704 (KLR)
- Parties
- Applicant: Chris Munga N. Bichage; Applicant: Zaheer Jhanda; Applicant: James F. O Kenani; Respondent: I.E.B.C; Respondent: Julius Meja Okeyo (Returning Officer); Respondent: Richard Nyagaka Tongi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Election Petition 12 of 2017
- Procedural Posture
- Election Petition / Interlocutory Application Regarding Service of Process
- Outcome
- Interlocutory order for inquiry into service; no final determination on merits.
- Judges
- AG Ndung'u
- Legal Topics
- Service of Process, Affidavit of Service, Preliminary Objection, Procedural Fairness
- 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 (Returning Officer)
Respondent
Richard Nyagaka Tongi
Respondent
Procedural Posture
Election Petition / Interlocutory Application Regarding Service of Process
Legal Issues
- 1 Whether the 1st and 2nd Respondents properly served their response to the petition and replying affidavits on the 1st Petitioner.
- 2 Whether the disputed stamp and signature on the document constitute valid proof of service.
- 3 Whether the application to expunge affidavits is procedurally barred by Rule 15(2) of the Elections (Parliamentary and County Elections) Petition Rules.
Ratio Decidendi
The court found that, given the disputed nature of the stamp and signature on the alleged served documents and the seriousness of the allegations regarding service, it was necessary to conduct an inquiry into whether service was properly effected. The court held that the interests of justice required the process server or advocate who allegedly effected service to file an affidavit of service and, if necessary, be cross-examined on the same. This approach ensures procedural fairness and upholds the right of parties to be properly served with court documents before substantive proceedings continue.
Court Disposition
Interlocutory order for inquiry into service; no final determination on merits.
Orders
- The process server or advocate who effected service shall file an affidavit of service.
- If necessary, the process server or advocate shall be cross-examined on the affidavit of service.
Full Case Text
Judgment text and source record
34 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
At the point when the 1st and 2nd Respondents were to open their case this late afternoon, Counsel for the 1st Petitioner brought it to the attention of the Court that the 1st Petitioner had never been served with the response to petition and any replying affidavits.
Counsel for the 1st and 2nd Respondents indicated service was done and indeed passed over a document stamped as received by the firm of Ms Oguttu, Ochwangi, Ochwal and Co. Advocates.
The issue of service thus became a contested issue and the Court invited submissions on the same.
In his submissions, Counsel for 1st Petitioner cast doubt on authenticity of the stamp on the response said to be served. He asserts he is not aware of the signature thereon. He denied service of any affidavit.
Ms Makobu in her submissions indicated that the onus is on the person who served to prove service.
Mr. Terer relied on the stamp and signature to show the document was served. He avers that the issue has not been raised all through the pretrial upto the conclusion of the 1st Petitioner's case and the 2nd and 3rd Petitioner's case. Indeed he seeks that if the documents are not served then the 1st and 2nd Respondents be granted leave to serve.
Mr. Omogeni while taking a neutral stand since the battle was between the 1st Petitioner and the 1st and 2nd Respondent, terms the current application a preliminary objection which seeks to expunge affidavits filed by the 1st and 2nd Respondents. Before the Court makes a determination an inquiry needs to be made as the facts are not settled. There is an element of ambush and application is locked out by Rule 15(2) of the Elections (Parliamentary and County Elections) Petition Rules.
Strictly speaking, the issue before Court is one on service.
I have considered the circumstances of this case more so noting that there is a document stamped as received by the firm of Oguttu, Ochwangi and Ochwal Advocates which stamp is now disputed.
This in my considered view and given the nature of the matter before Court, is a proper case for an inquiry as to the issue of the service that is disputed.
It will serve the wider interests of justice to inquire as to the truth of service or lack of it if at all.
To that extent, I direct and order that the process server or advocate who effected service does file an affidavit of service and if found necessary be cross-examined on the same. This must be done as a matter of urgency and directions on this will be given at delivery of this ruling.
Dated, Signed and Delivered in Kisii this 18th day of December, 2017.
A. K. NDUNG'U
JUDGE