[2008] KEHC 2865 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

Election Petition 1 of 2008

JONATHAN TOROITICH…………………......…………………..PETITIONER

AND

MOSES LESSONET…………………………...…………1ST RESPONDENT

PETER ONYANGO OBADO, RETURNING OFFICER

ELDAMA RAVINE CONSTITUENCY……….....…………2ND RESPONDENT

ELECTORAL COMMISSION OF KENYA……......……...3RD RESPONDENT

RULING

Jonathan Toroitich, the petitioner, presented this petition seeking that the elections in respect of Eldama Ravine Constituency in which Moses Lessonet the 1st respondent was declared the winner and Member of Parliament for Eldama Ravine Constituency in the elections conducted on 27th December 2007 be declared null and void. The petition was not served upon the respondents, on 23rd January 2008; the petitioner filed an ex-parte chamber summons seeking leave of the court to serve the respondents through the substituted service by publication in the Kenya Gazette, onedaily Englishnewspaper and onedailyKiswahilinewspaper. This application was heard on 24th January 2008, and the petitioner was granted the leave to effect substituted service.

By way of a notice of motion under Section 20(1)(4)andSection 22of theNational Assembly and Presidential Elections Act,(hereinafter referred to as ‘the Act’) the 1st respondent applied that the petition be struck out on the grounds that the petition was never served according to the law. The 1st petitioner also alleged that the petitioner failed to describe himself by the names stated in the voters register by leaving out the sir name Moi. The 1st respondent alleged that the petitioner was a stranger to the Eldama Ravine constituency where he is registered as Jonathan Toroitich Moi.

By a notice of motion filed under the same provisions of the law, the 2nd and 3rd respondents similarly applied for the petition to be struck out on the grounds that there was no proper and valid petition on record for want of service. These applications were argued together.

On the part of the 1st respondent, he contended that he was never served with the petition within the stipulated time. He deposed in the supporting affidavit that he was at his Nairobi Langata home, but no one enquired about him with an intention to serve the petition. He noticed the petition was filed against him on 25th January 2008 and 29th January 2008 in the newspapers. He visited the offices of the Deputy Registrar High Court on 30th January 2008 but he was not able to get a copy of the petition until the 6th of February 2008 when he managed to get a copy from his lawyer. When he perused the petition, he noticed that the petitioner described himself as Jonathan Toroitich as opposed to the full name that the petitioner used during the elections i.e. Jonathan Toroitich Moi. Counsel for the 1st respondent further submitted that the results of the elections were gazetted on 30th January 2008 and time within which to affect service ran from 31st December 2007 up to 27th January 2008 i.e. the 28 days within which the petition ought to have been filed and served.

The petitioner ought to have served the petition personally, however since the petitioner opted for the substituted service, he ought to have advertised the notices of the petition in the Gazette Notice, one English daily and one Kiswahili daily by the 27th January 2008. The publication must be carried out in the three publications and the only publication which was within time was the advertisement on the Nation of 25th January 2008. The advertisement of the notice of the Kiswahili Daily, Taifa Leo was published on 29th January 2008 and the Kenya Gazette of 29th January 2008 advertised the petition. It was argued that both the publication in the Kenya Gazette and the Kiswahili Daily were outside the prescribed period therefore the petition lapsed due to passage of time. Counsel further argued that the petitioner failed to effect personal service within the prescribed period or to apply due diligence. The affidavit of service by the process server just made generalized averments without specifying the places where he looked for the petitioner. There was no due diligence, as envisaged by the provisions of Section 20(1) (IV).

Lastly counsel argued that the petitioner improperly described himself as ‘Jonathan Toroitich’ while the register of voters described him as ‘Jonathan Toroitich Moi’. Counsel submitted that this was not a minor omission; it is tantamount to concealing one’s identity. As far as Eldama Ravine Constituency is concerned, the petitioner is known as Jonathan Toroitich Moi. Counsel made reference to the authority in the case of, James Charles Nakhwanga Osogo vs. Simon Chacha & another EP No. 8 of 1988 (unreported)where the court emphasized that naming a specific place or to change a complaints name is not a trivial matter. The petitioner should endeavour to avoid such mistakes.

The 2nd and 3rd respondents were represented by Mr. Ngunjiri who similarly argued that the advertisement of notice of the petition by way of substituted service both in the Kenya Gazette and the Taifa Leo of 29th January 2008 were done outside the prescribed period. The notice of the petition advertised in the Daily Nation of 25th January 2008 was dated 23rd January 2008, so was the notice of the petition published in the Kenya Gazette. However the notice in the Taifa Leo was dated 13th January 2008 which clearly shows that the notice was drawn immediately the petition was filed on 11th January 2008, but was not published within the period stipulated in the law. Counsel relied on the affidavit of the Chairman of the Electoral Commission of Kenya (ECK) in support of his application.

The 3rd respondent deposed that the ECK has a fully pledged legal department which is headed by a Senior Legal Officer, an advocate of the High Court of Kenya and their offices are situated on the 6th Floor of Anniversary Towers Nairobi. According to the 3rd respondent, the offices of the ECK are always open to the members of the public and the Chairman of the ECK Mr. Samuel M. Kivuitu was in the office on all the days that the process server said he attempted to effect service but was never served with the petition at all.

It was not until the 1st February 2008, when he noticed an advertisement by The Chief Justice directing that this petition would be mentioned on 11th February 2008. That is when he directed his legal department to obtain a copy of the petition. Thereafter he went to the back issues of the newspapers and found the advertisement one in Kiswahili newspaper dated 13th January 2008 but published on 29th January 2008 and in the Kenya Gazette and in the Kiswahili daily Taifa Leo. He also found the notice published in the Daily Nation dated 23rd January but published on 25th January 2008. The 3rd respondent deposed that the offices of the ECK were open from 8. 00a.m. To 6. 00 p.m. daily except on a Sunday 13th February 2008. There was no due diligence applied by the petitioner to effect service of the petition upon the 2nd and 3rd respondents.

Due to failure of the petitioner to serve the petition within the period stipulated by the law, the 2nd and 3rd respondents were not represented in court on 11th February 2008. The 2nd and 3rd respondents took time to obtain the copies of the petition and to instruct a lawyer. For the above reasons counsel submitted that firstly, service must be effected personally. There is no credibility of the matters stated in the affidavit of service. The process server states that he could not effect the service upon the 2nd and 3rd respondents. It is clear that no efforts were made to serve the 2nd and 3rd respondents who are an institution and occupied public offices and could not fail to acknowledge receipt of legal documents.

Thus counsel invited the court to find that as far as the 2nd and 3rd respondents are concerned, no due diligence was employed to effect service upon them. Secondly the law provides that in the event that after due diligence is applied and it is not possible to effect personal service, that is when substituted service is resulted to. The Act provides that service of the petition is supposed to be published in the Kenya Gazette and in one English and one Kiswahili local daily with the highest national circulation in each case. Simple calculation of the days shows that the last day of the service of the petition ought to have been on the 27th January 2008. The publications therefore in the Kenya Gazette and the Kiswahili newspaper were outside the prescribed period. Counsel made reference to the case of Ephraim Njugu Njeruvs. Justin Bedan Njoka Muturi & 2 others [2006] eKLR where the Court of Appeal held that;

“The twenty-eight days elapsed on 31st January, 2003 at 5 pm since service cannot be affected after 5 pm and it follows therefore that the order issued by Onyancha J. at 5. 45 pm was given after the statutory period had expired. Where time is of essence like in this elections petition where (sic) the statute provides that the petition shall be presented and served within twenty eight days the court has no jurisdiction to extend the time. It follows therefore, that the service was invalid.”

Further counsel made reference to the case of David Wakairu Murathe vs. Samuel Kamau Macharia CA Civil Appeal No. 171 of 1998where the service of the notice of the petition was effected upon the respondent two days after the prescribed period. The Court of Appeal held that the petition ought to have been struck out despite the fact that the ECK was served timely. The provisions of the law are that the petition should be served upon all the respondents within the stipulated time.

In the case of Alicen J. R. Chelaite vs. David Manyara Njuki and 2 others Civil Appeal No. 150 of 1998 eKLR the Court of appeal upheld the decision of the High court in which the petition was struck out for failure to comply with the provisions of Section 20(1) that require a petition be served within 28 days from the publication of the election results in the gazette. Chelaite filed the petition within the 28 days but she served it outside the period. It was held that the petition was incompetent for having been served outside the prescribed period.

In the case of Mwai Kibaki vs. Daniel Toroitich arap Moi and Others Civil Appeal No. 172 of 1999 eKLR it was held that:

“What would constitute the general principle, the ratio decidendi, which would be applied in all subsequent cases is that since section 20(1) (a) of the Act prescribes twenty eight days as the period within which a petition must be served, any petition which is served outside that period is incompetent and must be struck out. It is this general principle which would be binding on the courts. There will of course be other conclusions within the main decision, such as whether section 20 (1) (a) is in conflict with Rule 14 and so on but these are what are designated as obiter dicta and these are not binding. Halsbury puts it like this at paragraph 574:

“Dicta: Statement which is not necessary to the decision, which go beyond the occasion and lay down that it is unnecessary for the purpose in hand are generally termed “dicta”. They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a judge are known as “obiter dicta”, whilst considered enunciations of the judges’ opinion on a point not arising for decision on, and so not part of the ratio decidendi, have been termed “judicial dicta”. ………”

On the part of the petitioner, Mr. Gai opposed these applications. He relied on his affidavits and the affidavit of service sworn by Mathew Mutsosi who detailed the attempts he made to effect service on the respondents. The process server deposes that he made attempts on the 17th January 2008 to effect service upon the respondents without success. He also made attempts on the 19th and on the 20th he travelled to Mombasa trying to effect service upon the 1st respondent without success.

All those attempts have not been denied especially by the 1st respondent and after experiencing difficulties due to the post-election violence the process server was unable to travel and that is why the petitioner resulted to the substituted service. The petitioner applied for leave of the court, and the notice was duly published in one English Daily, the Kenya Gazette and the Taifa Leo. Counsel submitted that the date on the notice which was published on the Taifa Leo as 13th January 2008 was an error made by the Taifa Leo, the date of the notice was 23rd January 2008. Counsel therefore urged the court to ignore that mistake as a mere typing error. The publication on the daily Nation was duly published on the 25th January 2008 within the prescribed period. The other two notices which were published on 29th January 2008 although appearing two days late, there were circumstances that the court should take into consideration especially the post-election violence where the process server and the counsel for the petitioner were all displaced, their offices were not functioning in the normal manner.

The other consideration to take into account is that the 28 days lapsed on a Sunday and publication was carried out one day later. Counsel submitted that the substituted service was effected in accordance with section 20 (4) of the Act. Counsel argued that the authorities cited by the respondent have been overtaken by the amendment of 2007 which provided for the substituted service and since no penalty is provided for failure to comply, this court has the necessary jurisdiction to determine the petition.

I have considered the arguments for and against the application to strike out the petition. It is not disputed that service was effected by substituted service according to the provisions of section 20(1) (4) which provides as follows:

“Where after due diligence it is not possible to effect service under paragraphs (a) and (b), the presentation may be effected by its publication in the Gazette and in one English and one Kiswahili local daily newspaper with the highest national circulation in each case.”

The above amendment should be read together with the provisions of section 20(1) (a) which provides as follows:

“A petition-

(a)To question the validity of an election shall be presented and served within twenty-eight days after the date of publication of the result of the election in the Gazette.”

The issue for determination in this petition is whether service was effected according to the provisions of the law. Certainly the amendment to Section 20 was intended to give relieve to the petitioners whose efforts to effect personal service are frustrated by the respondents who evade service either by leaving the jurisdiction of the court or going into hiding thereby obstructing the service. The preferred mode of service still remains personal service and it is only after due diligence that the substituted service should be resulted to.

It is therefore imperative for this court to determine whether the petitioner employed due diligence to effect service before resulting to the substituted service. The due diligence that was applied by the petitioner is contained in the affidavit of service sworn on 23rd January 2008 by Mathew Mutsosi who stated as follows:

“5. THAT on the 17th January, 2008 I proceeded to Esageri Centre Eldama Ravine and while at the Centre I tried to inquire from the wananchi who informed me that Hon. Lessonett is at Nairobi and may be available at his Esageri over the weekend.

6. THAT I travelled further to Eldama Ravine and at the Electoral Commission offices I enquired of the 2nd respondent and was informed that he had not been around since the election was conducted and I was unable to trace his whereabouts.

7. THAT I tried reaching Hon. Lessonett on his mobile phone No. 0722-619114 which I had obtained from of the locals at Esageri to facilitate a meeting with him but the phone went unanswered.

8. THAT on the 19th January 2008, I got information from the petitioner’s aide that the 1st respondent might have travelled to Mombasa for the weekend.

9. THAT I was at Nairobi on the 19th January 2008 where I went to the offices of the 3rd respondent but was not able to access the Chairman to serve him personally.

10. THAT on 19th January 2008 I proceeded to Mombasa and on Sunday 20th January 2008 I enquired at the Whitesands Hotel and Sun and Sands Beach Resort and other private beach hotel whether the 1st respondent might have been there but I was unable to trace him.

11. THAT I tried to trace the Honourable member from the public beaches and any other public place that I may access without success. I returned to Nairobi and on Monday 21st January, 2008 I tried to trace him at his place of business between Barclays Plaza and Nyayo House where he operates a parking lot. Also at his residence at Langata and I tried to trace him to no avail.

12. THAT again on the 22nd January 2008 I went back to the said offices but still could not manage to see the Chairman.”

Those were the efforts made by the process server on behalf of the petitioner to effect service. As far as the 2nd and 3rd respondent are concerned, and, taking into consideration, the replying affidavit by the Chairman of the ECK, I do not think that the process server employed due diligence to effect service upon the 2nd and 3rd respondents. This is because the offices of the ECK are public offices and the 2nd and 3rd respondents operate within an institutional framework which performs public duties. It is inconceivable that ECK can refuse / evade to accept service of legal documents such as the notice and the petition.

Even if they refused to accept personal service, the process server should have attempted to pin the documents outside their offices, to demonstrate due diligence. [See the case of Abu Chizaba Mohamed Vs Mohamed Bwana Bakari & 2 Others CA No. 238 of 2003] The other problem that I find with this petition is that the notices in the Kenya Gazette and in the Kiswahili Daily were published on the 29th January 2008 which is two days after the prescribed period. It is only the notice in the Daily Nation which was published within time. The petitioner is required make all the three publications within the stipulated period of 28 days. The word used in the law is “and” which makes it conjunctive and not disjunctive.

Counsel for the petitioner argued that there was chaos in the Country. That chaos notwithstanding, the process server was able to move about between Nairobi and other places but did not serve the respondents. Moreover there is no explanation how the petitioner was able to publish the notice in the ‘Daily Nation’ within time, but failed to publish the notices in the other publications. It is also noteworthy that the petition was filled on the 11th of January 2008, there is no explanation what the petitioner was doing up to the 17th of January 2008, and even after obtaining leave within time, the notices were not published. In this case I find that the petition was served outside the prescribed period. It is clear that the petitioner did not apply due diligence to serve the petition as 50% of the period of 28 days is not accounted for as no efforts were made to comply with the law.

Courts have routinely held in several decisions both the High Court and the Court of Appeal that a petition which is served outside the prescribed period is a nullity. In the case of Jayne Kihara vs. Christopher Ajele & Others EP No. 2 of 2008this court lamented that it is time rules of procedure spelt out clearly when and how applications to strike out petitions should be made. I noted that the courts have routinely struck out petitions which are invalid for various reasons especially those reasons that touch on the jurisdiction of the court. It behoves upon me now to address whether the question of service outside the prescribed period touches on the validity of the petition and jurisdiction of this court.

The law clearly provides that petitions should be filled and served within 28 days after the gazette notice of the elections. This position has been upheld by numerous authorities both in the High Court and the Court of Appeal. Any service outside this period is invalid and null and void. I find myself bound by those authorities and pay full respect to the holding in the case of Rookes vs. Bernard [1964] 1All ER 367 which was adopted with approval by the Court of Appeal in the case of Mwai Kibaki vs. Daniel Toroitich Arap Moi where Lord Gardener LC delivered himself as follows:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what are the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules”…

“The Kenya Court of Appeal has steadfastly remained loyal to this principle and the consequence of that is that the Courts of this Country have continued to adhere to the principles of precedent andstare decisisand that is why we have joined the appellants and his counsel in asserting the continued adherence to the principles.”

In conclusion, it is a fact; that this petition was served outside the statutory period, it matters not that the period was only two [2] days. The law provides for 28 days, period. No life can be injected into it, even if this court tried to nature it, to the full hearing that would be futile, in the face of the written law and decided cases. Although failure by the petitioner to include his sir name can be described as a mere anomaly that does not go into the root of the petition and does not prejudice the respondents, failure to effect service cannot be classified in the same category. Failure to serve the petition within the prescribed period has been held to be a nullity.

I think I need not say more in this petition but hold that the petition was not served upon the respondents within the prescribed time. In regard to the 2nd and 3rd respondents, the petitioner did not employ due diligence to effect personal service before resulting to substituted service which in any event was effected outside the stipulated period. Consequently the petition is hereby struck out.

The petitioner shall pay the costs of the petition to the respondents.

Ruling read and signed on the 9th day of May, 2008

M. KOOME

JUDGE