[2007] KECA 468 (KLR)

M'Mithiaru v Maore & 2 others (No 2)

Court of Appeal , at Nairobi October 19, 2007

Omolo, Githinji & Onyango Otieno JJ A

Civil Appeal No 272 of 2003

(Appeal from a ruling and order of the High Court of Kenya at

Meru (Mulwa, J) dated 23`d September, 2003 in HCEP No 1 of 2003

Practice and Procedure - service of election petition - parliamentary elections - duty of the petitioner to serve the respondent within 28 days of the publication of the election results in the Kenya Gazette - mode of service -personal service versus substituted service - circumstances in which an inference that personal service has been effected may arise - whether substituted service through night radio and television announcements is proper service - whether only judges designated by the Chief Justice may hear interlocutory matters arising from election petitions - National Assembly and Presidential Elections Act (cap 7) section 20(])(a).

Judicial officer - Judges of the High Court - concurrent jurisdiction

-jurisdiction of a judge of the High Court to reverse the order of another High Court judge in the absence of an application for review.

On 27" December 2002, Presidential, Parliamentary and Civic Elections were held in Kenya. In those elections the appellant, the 1" respondent and four other persons contested the parliamentary seat for Ntonyiri Constituency in Meru North. At the close of the elections, the 1st respondent was declared the duly elected member of parliament for Ntonyiri after garnering the highest number of votes.

The appellant filed a petition in the High Court against the I 't respondent, the returning officer and the Electoral Commission of Kenya in which he asked the Court to nullify the parliamentary elections for Ntonyiri. Under section 20(1)(a) of the National Assembly and Presidential Elections Act, the petition was required to be served within 28 days after the publication of the election results in the Kenya Gazette. The Gazette notice was published on 3'' January 2003.

On 31" January 2003, the appellant filed an application accompanied by an affidavit of his process server in which he deponed that he had been unable to locate the l respondent for the purpose of effecting personal service of the petition. The appellant asked the High Court to firstly, extend the time of service and secondly, to allow him to serve the 151 respondent through the Kenya Gazette and television and radio announcements. The High Court allowed the application and in due course, radio and television announcements of the filing of the petition were aired by two broadcasting operators. At least one of the announcements was aired between 10. 20 pm and 11. 45 pm.

On 71' April 2003, the 151 respondent filed an application in the High Court asking it to strike out the election petition on the ground that it had not been personally served on him whether within the 28 days prescribed by law or at all. After hearing the opposing arguments of either party, the High Court, constituted by a different judge, found that the previous order allowing the alternative methods of service was not proper as those alternative methods were not available in law. The Court further found that in effect, there had been no proper service and it struck out the election petition. The appellant appealed against the decision.

Held:

1. The modes of service provided for in rule 14(2) of the National Assembly Elections (Election Petitions) Rules, 1993 are alternative to personal service. They are available as and when the respondent cannot be served in person.

2. Personal service remains the best form of service. However, personal service need not be by actually handing over the papers to the respondent. It can be inferred if the petitioner makes all reasonable efforts to serve the respondent but fails to do so simply because the respondent evades service by hiding, refusing to acknowledge service, causing his agents or servants to restrain in any way the process server from reaching him or by use of any other tactics to avoid service.

3. If the petitioner demonstrates to the court's satisfaction that he made every effort to effect personal service but the same was thwarted by the actions of the respondent, then the court will infer that personal service had been effected upon the respondent.

4. In this case, no satisfactory attempts were made to serve the 151

respondent within 28 days as required under section 20(l) (a) of the National Assembly and Presidential Elections Act. The action allegedly taken by the appellant to serve the first respondent could not lead to an inference that the first respondent had been served with the election petition and notice of presentation of the petition.

5. Substituted service through radio announcement is not sanctioned by law as a lawful means of serving an election petition. In such service,there is no guarantee that the person intended to be served would hear the announcement especially in this case where the message was aired late in the night. In ordering such service, the High Court had acted without jurisdiction.

6. (Obiter per Githinji JA) It would be against public policy and perhaps

a breach of the constitutional right to privacy to serve election petitions outside the official hours and times specified for service of other court processes. In this case, it was correct for the High Court to hold that the 151 respondent should have been served before the hour of five in the afternoon.

7. (Obiter Per Omolo JA) The jurisdiction to hear and determine election

petitions and interlocutory matters arising from such petitions is given to each and every judge of the High Court by the Constitution and that right is not limited by the National Assembly and Presidential Elections Act. The hearing of a petition is not limited only to judges designated by the Chief Justice and such limitation would be void for contravening section 44 of the Constitution.

8. Because the second judge of the High Court had concurrent jurisdiction as the judge who had allowed alternative service by advertisement, he had no jurisdiction to declare the orders of his fellow judge unlawful and unacceptable. The position would have been different if the High Court had been asked to review the orders made by the first judge who himself was not available to review his orders and the Chief Justice had given the subsequent judge permission to review the orders.

Appeal dismissed.

Cases

1. Mohamed, Abu Chiaba v Mohamed Bwana Bakari & 2 others Civil Appeal No 272 of 2003

2. Murathe v Macharia (2008) 2 KLR (EP) 244

3. Selle v Associated Motor Boat Co Ltd [1 968] EA 123

4. Kibaki v Moi & another (2008) 2 KLR (EP) 351; [2000] l EA 115 Advocates

Mr Paul Matheri Wamae for the Appellant Mr Monari for the V Respondent Mr Mukuria for the 2,,d & 3rd Respondents

October 19, 2007, the following Judgments were delivered.

Onyango Otieno JA Presidential, Parliamentary and Civic Elections were held in Kenya on 271h December 2002. The appellant in this appeal, Ntoitha M'Mithiaru (appellant), the first respondent, Richard Maoka

Maore and four others were candidates for the parliamentary elections 1contesting Ntonyiri Constituency seat.The second respondent, Bishop Joseph Kyavoa, was the Returning Officer while the third respondent, The Electoral Commission of Kenya, was conducting and supervising theentire elections. On the same day after the close of balloting and counting 5of the votes, the second respondent announced the results of the electionsand the results showed that the first respondent had won the parliamentaryseat having got 10,934 votes. The appellant was second with 6,808 votes.

There were other candidates who scored fewer votes than each of the two.

The official results were gazetted in the Kenya Gazette of 3'd January 2003. 10

The appellant was not satisfied with the results. On 29" January 2003, he petitioned Superior Court against the results by way of Election Petition No 20 of 2003 and sought:

"(a) That it be determined that the said Richard Maoka

Maore was not duly elected. 15

(b) That the election in Ntonyiri Constituency be declared void and that a certificate to that effect be issued to the Speaker of National Assembly.

(c) That the respondents jointly and severally be

condemned to pay your petition's (sic) costs of this 20

petition and matters incidental thereto.

(d) That such further or alternative orders and/or reliefs be made as this honourable Court may deem just."

That petition was required to be served upon all parties within twenty 25

eight (28) days from the date of the publication of the election results in

the official gazette as is the legal requirement according to the provisions

of section 20(1) (a) of the National Assembly and Presidential Elections

Act, chapter 7 Laws of Kenya. As the petition was filed on 29" January

2003, the applicant had to serve it upon all parties latest by 3151 January 30

2003. The appellant annexed an affidavit sworn by a process server, Mr Mathias Mboya Maithya on 31 st January 2003 which states as follows on the service of that petition:

"2. That I am a process server of this honourable Court

duly authorized to serve processes issued. 35

3. That on 30" January 2003 I received in duplicate election petition No 20 of 2003 to effect service upon the respondent.

4. That on the same day, 30" January 2003, the

petitioner and I proceeded to Continental House Nairobi 40

at the 1 Sl respondent's office to effect service upon him but the guards at the entrance advised me that the 1"respondent was not in office.

5. That on 30" January 2003, I proceeded to Mutuati, Ntonyiri Constituency accompanied by the petitioner but efforts to trace the l51 respondent within proved futile.

6. That on 30" January, 2003 in company of the petitioner we visited the V respondent's residence along Waiyaki Way where the 1 51 respondent's personal assistant one Patrick advised me that the 151 respondent was not in his home.

7. That on 3151 January 2003, at 7. 30 am the second visit at the home, the 151 respondent's guards denied me access to the home.

8. That I therefore sought assistance from the local District Officer Westlands who accorded me two Administration Police namely Mr Kisunza and Morris but upon arrival of (sic) 151 respondent's home the guards at the gate refused us access to the 151 respondent.

9. That efforts to locate 15L respondent in most

restaurants where the 151 respondent occasionally visits

within Nairobi proved futile.............. "

Having failed to trace the first respondent and serve him with the electio petition as deponed by the appellant's process server, the appellant file an application by way of a notice of motion dated 3111 January 2003 in th superior court in which he sought mainly four orders which were that:

"(c) This application be heard ex-parte;

(e) In special circumstances of this petition, service through the Kenya Gazette be deemed proper service;

(f) Leave be granted to serve the first respondent Richard Maoka Maore by way of advertisement in local radio or television network.

(g)Time for service of this petition be extended by fourteen days or such other duration as this honourable Court may deem fit to grant."

That application was filed on grounds, among others, that the fin respondent could not be served in person as required under section 20(l

(a) of the National Assembly and Presidential Election Act as he wo deliberately avoiding service; that all efforts had been made to effe( service in person upon the first respondent by visiting his home, offic and all other places he was considered likely to go to or visit but the

respondent could not be traced as he had gone into hiding or w run; that service of the petition had to be effected on or before 31 2003, being the 28" day after the date of publication of the rest Kenya Gazette on 3rd January 2003 and that no other mode of si service was possible other than advertisement through the electroi within the remainder of the statutory period of service unless extended for service of the petition. That application was plat the Superior Court (Onyancha J) in the afternoon of 31st Janus After an ex-parte hearing, the learned Judge certified it urgent partly and made orders, inter-alia, as follows:

"(c) Service of the application to be effected on or before 71' February 2003 by personal service or in default through advertisement in a local widely read newspaper;

(d) Service of the petition be effected by substituted service by the mode of advertisement on Kenya Broadcasting Corporation Radio or Citizen Radio or Kenya Broadcasting Television or Citizen Television on or before 12. 00 midnight."

I must point out that apparently, on that day and at that time, th Judge heard other applications and the above orders were made i of all of them including the application. The record shows that t of the superior court were complied with and the election pet purportedly served through the KBC radio and television ani Radio and Television. As to whether that was legally proper se whether the Superior Court had the jurisdiction to make the of were made are matters I will refer to later in this judgment.

On 71" April 2003, the first respondent filed a notice of motion April 2003 in the Superior Court on which he sought three follows:

"1. That the petition dated and filed on 291" January 2003 be struck out on the ground that the same was not personally served on the first respondent within 28 days after the date of the publication of the results of the Parliamentary Election in the Gazette or at all.

2. That pending the hearing and determination of the application, all proceedings herein be stayed.

3. That petitioner do pay the costs of the first respondent in respect of the petition as well as costs of this application."

1That application cited non service of the petition and notice of presentation of petition as first of the grounds for seeking striking out of the petition. The second ground was that the purported order for substituted service

or extending the statutory period was null and void. Lastly, the first 5

respondent also maintained as its ground for seeking the striking out of the petition that there was no evidence of any service of the petition upon him. That application was supported by an affidavit sworn by the first respondent which stated in pertinent part as follows:

"2. On 3'" March 2003, I instructed M/S EN Monari, 10

Esq, Advocate to act on my behalf in this petition. I further instructed them to peruse the court file as I was not served with the petition personally.

3. Upon perusal of the court file, my advocates of record,

inform me, which information I verily believe to be 15

true and correct, that they found an affidavit sworn by

one Mathias Mboya Maithya and filed on 31 11 January

2003.

4. 1 am further advised by my advocates of record (sic),

which advice I verily believe as true and correct, that 20

the affidavit purported that I had left the country a fact the deponent knew or ought to have known as untrue, incorrect and misleading.

5. I have now perused the affidavit aforesaid.

6. What is deponed is true to the best of my knowledge 25

save as to information and belief, sources and grounds thereof I have disclosed."

That application was opposed by the appellant who, in his ground of

opposition filed on 51' May, 2003, stated as follows: 30

"That the petition filed on 291h January 2003 was served to (sic) the respondents by the way of substituted service as per the order made on 3151 January 2003 by Hon Mr Justice Onyancha."

35

The affidavit in support of the grounds of opposition was filed by the

appellant. He deponed that he accompanied a court process server to

Ntonyiri Constituency to serve the petition upon the first respondent but

the respondent was "nowhere to be found in the Constituency" and he also

accompanied the court process server to the residence of the 1 11 respondent 40

in Nairobi but guards stationed at the gate denied them entry to the house of the first respondent. Thus, whereas he mentioned only two attempts toserve the respondent, the process server mentioned three attempts. Be that as it may, that application by the respondent seeking to strike out the petition came up for hearing before the Superior Court (Kasanga MulwaJ) who, after full hearing found that the order for substituted service upon which the appellant relied to support his allegation that the petition was properly served, was not available in law. Having made that finding, the learned Judge proceeded to strike out the petition stating, inter alia, as follows:,,

In the circumstances, I find that there was no service on the applicant herein or on any of the other respondents in the petition as the substituted service ordered was and still is unlawful and unacceptable. For these reasons, the petition herein must fail.

The result of these is that this application succeeds. The petition herein dated and filed on 29" January 2003 is consequently struck (sic) for want of service. The applicant and the other 2 respondents in the petition will have their costs in respect of the petition."

The appellant felt aggrieved by that ruling hence this appeal before us which is premised on seventeen (17) grounds all of which, in a summary, are that the learned Judge erred in striking out the petition on grounds that it was not served upon the respondents whereas the respondents were served with the petition either through proper substituted service or through normal service upon the 2"d and 3rd respondent and in the case of the first respondent, through attempts to serve him which he evaded knowingly by going underground, hiding or by making it impossible through his guards to access him.

Before us, Mr Wamae, the learned counsel for the appellant, submitted at length what I may, in a nutshell, state that the second and third respondents were properly served and that he brought that fact to the attention of the Superior Court. He referred us to page 73 of the record where he had addressed the Superior Court on 28" July 2003 and told that Court that the 2"d and 3rd respondents were served and stated further that only the first respondent could argue about the service and the Court responded then by making an order that the 3rd respondent would only be confined to matters of law only. He thus confined his arguments before us to the issue of service upon the first respondent only as in his submission, the 2 "d and 3rd respondents were properly served with the petition and the superior court's finding that they were also not served was misplaced.

On service upon the first respondent, Mr Wamae's contention was th trial Judge having made a finding that rule 14(2) of the Election Pe Rules was applicable as it was not in conflict with section 20(1) the National Assembly and Presidential Election Act (cap 7) La, Kenya and as that rule provides for service other than personal se the Judge should have accepted that the service of the petition tha affected upon the first respondent was proper service. For that prof he referred us to the recent case of Abu Chiaba Mohamed vs Moh Bwana Bakari & 2 Others - Civil Appeal No 272 of 2003 and a

that like in that case, in this case, the appellant made several attem serve the first respondent with the petition but the first responde hide himself with the sole purpose of avoiding personal service. being the case, Mr Wamae urged us to accept that the attempts m', serve the first respondent which did not end in physical personal se of the petition upon the first respondent amounted to a proper sc upon the first respondent under the provision of rule 14(2) of the Na Assembly and Presidential Elections Rules as well as under section

(a) of the National Assembly and Presidential Elections Act chal and should be construed to amount to personal service. He raised matters such as that the learned Judge of the Superior Court erred i in finding that the Honourable Mr Justice Onyancha should not heard the interlocutory application that was seeking extension of to serve the petition and order for substituted service and that as the Superior Court was concerned, the orders granted by Onyan were conclusive and no other superior court Judge had the jurisdict overturn those orders; that the learned Judge erred in applying the Procedure Rules and thus finding that service of the petition could i done after 5. 00 pm which was, in his view, a wrong finding in law as Procedure Rules do not apply to election petitions. He thus urged allow the appeal. Mr Monari, the learned counsel for the first respor in opposing the appeal contended that Onyancha J had no jurisdict hear the application seeking orders for substituted service as he hr been appointed as an Election Court. He however agreed that one Juc the Superior Court could not overrule the other but maintained that s as an Election Court as Mulwa J was, he could overrule another. of the superior court. He submitted further that as what was to be s was an election petition and documents connected to the same pel announcement through the radio and through the television did nc could not be treated as service of the petition. They were mere not the fact that an election petition had been filed but could not cone the service of the petition. In his view, the affidavits purported to support of service upon or attempts to serve the first respondent up in confirming that the first respondent was not served. Tlevidence whatsoever that the first respondent was avoiding ser submitted that the facts in the case of Abu Chiaba Mohamed v, Bwana Bakari & 2 others (supra) were clearly distinguishab present case as the attempts made in this case fell far short a required before a court of law could conclude that service v upon the first respondent.

Lastly, Mr Monari referred to the case of David Wakairu Samuel Kamau Macharia CA No 171 of 1998 and argued thz to an election petition must be served unlike in this case v parties were not served.

Mr Mukuria, the learned counsel for the 2nd and 3d respondents submitted that the two respondents were not personally served by law but as the matter that was before Mulwa J was the apl the first respondent, the 2nd and 3rd respondents did not raise tl of non-service upon them before Mulwa J.

I have anxiously considered the above rival points raised by This is a first and last appeal. I am enjoined to revisit the ev was before the Superior Court afresh, analyse it, evaluate it a my own conclusion but always putting in mind that the sux Judge had the advantage of seeing and hearing the parties and allowance for that see the case of Selle vs Associated Mot Ltd [1968] EA 123. The starting point is the provisions of se

(a) of the National Assembly and Presidential Elections Ac Laws of Kenya. It states:

"20(1) A petition

(a)to question the validity of an election, shall presented and served within twenty eight days aft the date of publication of the result of the election the Gazettee."

The petition filed by the appellant was questioning the vali parliamentary election held in respect of Ntonyiri Consi December 2002. The results, as I have stated above, were gaz Kenya Gazette of 3rd January 2003 according to section 20(1; That section 20(1) (a) does not however present any mode All it says is that it must be served upon the other parties wit] of the gazettement of the results. Rule 14(2) of the Nationa Election (Petition Rules), 1993 provides as follows: 1

"(2) Service may be effected either by delivering the notice and copy to the advocate appointed by the respondent under rule 10 or by posting them by

a registered letter to the address given under rule 10 5

so that, in the ordinary course of post the letter would be delivered within the time above mentioned or if no advocate has been appointed, or no such address has been given by a notice published in the gazette stating

that the petition has been presented and that copy of it 10 may be obtained by the respondent on application at the office of the Registrar."That provision clearly gives alternative modes of service of election petition. In my humble opinion, those other modes of service are available 15 as and when the respondent cannot be served in person, in other words, they are alternative to personal service. I think that is why the word "may" is used in that provision. What I am saying is that personal service remains the best mode of service, but other alternative ways such as provided under rule 14(2) 1 have reproduced above are available and cannot be ruled out. 20 This Court, constituted of five Judges, considered in details, among others,the provision of section 20(1) (a) of the National Assembly and Presidential Election Act chapter 7 Laws of Kenya and rule 14(1) and 14(2) of theRules made thereunder and concluded that service by way of publicationin the Kenya Gazette, in view of section 20(1) (a) of the Act could not be 25 proper service. However, later in the same judgment it stated:

"But the Courts must accept the wisdom of the Parliament unless, of course, they are contrary to the provisions of the constitution. It was decreed in section

20(1) (a) that service of election petitions must be 30 personal and whatever problems may arise from that, the Courts must enforce the law until parliament should itself be minded to change it."In my mind, section 20(1) (a), as I have stated above, only provides for 35 the time within which the election petition should be served, which it specifically states is 28 days. It does not provide for the mode of service it does not state how the service is to be done. That is clearly covered by rule 14(2) of the National Assembly and Presidential Elections Rules.Thus in my view, section 20(1) (a) is not in any way in conflict with rule 40

14(2). I do agree it is in conflict with rule 14(1) which also provides for time within which an election petition is to be served. I also agree that rule 14(1) must, in such circumstances in law, give way to section 20(1

(a). However, having said that much, one thing still stands out, and tha is that in the case of Kibaki vs Moi [2000] I EA 115, no attempt was made to personally serve the respondent with the election petition. That, ii effect meant that the petitioner in that case preferred the alternative mods of service namely through gazzette notice before attempting persona service. Omolo, JA in the case of Abu Chiaba Mohamed vs Mohamei Bwana Bakari & 2 others (supra) explained what personal service wouh embrace. He stated, inter alia, as follows:

"Perhaps this is now an appropriate place for me to set out the issue of personal service of an election petition which the appellant made the basis for his motion to strike out the 131 respondent's petition."

Then he gave narrative factual actions taken by the appellant to sere the first respondent with the petition in that case and having done so, h, proceeded and addressed himself thus:

"I think that on the material placed before the trial Judge, any reasonable tribunal would be fully justified in concluding, as those who wanted to effect service upon the appellant did, that the appellant had gone underground with the sole purpose of evading personal service and that was why he could not be found in his two houses in Nairobi and Mombasa. Put simply, he was hiding from those who intended to effect personal service upon him.

Did Kibaki vs Moi establish any proposition that even where it be proved that a party was hiding with the sole purpose of avoiding personal service, yet such a party must still be personally served? The decision established nothing of the kind. At page 37 of the judgment in Kibaki vs Moi the Court stated: -

" ... section 20(1) (a) of the Act does not prescribe

any mode of service and in those circumstances, the Courts must go for the best form of service which is personal service. Before this Court, the appellant did not offer any reason why he did not go for personal service though in the High Court, it had been contended that the l Sl respondent in his capacity as the President, is surrounded by a massive ring of security which it is not possible to penetrate. But as the Judges of the High Court correctly pointed out no effort to serve the1 g1 respondent was made and repelled..."

The decision clearly recognised that if personal service which is the best form of service in all areas of litigation, is not possible, other forms may be resorted to. Otherwise why would the Court have expected to be given reason or reasons why personal service was not effected? Why would the High Court and this Court have expected that some attempt at personal service be tried on the President and be shown to have been repelled?"

Thus in the case of Abu Chiaba Mohamed vs Mohamed Bwana Bakari others (supra) this Court established that personal service is the best to of service, and that personal service need not be by actually handing o' the papers to the respondent. It can be inferred if the petitioner makes reasonable efforts to serve the respondent but fails to do so simply becai the respondent evades service by hiding, refusing to acknowledge servi causing his agents or servants to restrain in any way the process ser from reaching him or by use of any other tactics to avoid service.

Omolo, JA further stated:

" Put simply, the appellant in this case cannot be allowed to rely on his having successfully hidden himself from the attempts of the I s1 respondent to personally serve him to defeat the ls1 respondent's petition challenging the validity of his election as Member of Parliament for Lamu East Constituency. The effort made by the 151 respondent to personally serve him amounted to personal service on him and the learned trial Judge was right in holding that he had been served. He made it impossible for the ls' respondent and his agents to physically get hold of him and personally hand over the documents to him, but as I have said, he cannot be allowed to take advantage of his own wrong in hiding from those wanting to serve him and defeat the claim of the 151 respondent on that basis."

The above is the law. If the petitioner demonstrates to the coin satisfaction that he made every effort to effect personal service but same was thwarted by action of the respondent, then the Court will in personal service upon the respondent in the same way it would infer servin civil matters. Mr Wamae urges us to accept that in the case before us, personal service should be inferred as the appellant made several efforts to physically serve the fourth respondent with the petition but at all times the fourth respondent avoided service. He thus says the court's decision in the Abu Chiaba Mohammed vs Mohammed Bwana Bakari & 2 others (supra) would apply in this case.

I have considered the facts in this case and the facts in the case of AbuChiaba Mohamed vs Mohamed Bwana Bakari & 2 others (supra). Withrespect, I do not agree. In this case the affidavit sworn by the process server, 1Matheas Mboya Maithya on 30" January, 2003, most of which I havereproduced above states that the process server went to the 151 respondent'soffice at Continental House on 30" January, 2003 for purposes of servingthe l 51 respondent with the election petition but the guards advised him thatthe l5' respondent was not in the office. The process server himself did 1not state that he believed the 1 s1 respondent was in the offices.

He did notstate at what time he went to the 1 s1 respondent's office. He does not statewhether the guards who advised him that the 151 respondent was not in theoffice were the respondent's employees or guards generally employed toguard the entire building. In short, there is nothing to make me conclude 2that the first respondent was hiding in the office for purposes of avoidingservice of the petition. The guards might have been telling the truth thatthe first respondent was indeed not in the office.

The second effort wasmade on that same day 301h January, 2003. The process server proceededto Mutuati, Ntonyiri Constituency in an effort to trace the first respondent 2but again that effort proved futile. It is not stated why they had to go toMutuati to trace the first respondent. Who had told the process serverthe first respondent was there? The affidavit is silent on that. Where inparticular at Mutuati did they go to? It is not stated whether Mutuatiwas the first respondent's home or where his constituency office was and 3whether the process server had been told the first respondent was there.I cannot be satisfied that the first respondent was hiding there or that his agents were deliberately misleading the process server as to the first respondent's whereabouts with a view of avoiding being served. On the same day, the process server visited the first respondent's residence along 3 Waiyaki Way and the first respondent's Personal Assistant, one Patrick, advised them that the first respondent was not at his home. The process server did not state that he believed the first respondent was at home contrary to what Patrick said.On his second visit on 3151 January, 2003, at 7. 30 am the process server said the respondent's guard denied him access to the home and he soughtassistance of the Local District Officer who gave him two Administratic Police Officers to accompany him to the first respondent's home but tl guards refused him access to the first respondent.

Two questions con-to mind when considering the process server's allegations on the visit i the first respondent's home on all the three occasions. First is, was tl first respondent in the house on all or any of those occasions? If so, wr did the process server not say so? The second question is if the proce server believed that the first respondent was avoiding service, why di he not paste or pin the election petition and the notice of presentation the petition at the gate of the first respondent's home? The process serve knew very well that if he visited the first respondent's home on more thz one occasion and did not get him to serve him with the petition, on tl third visit he would paste or pin the petition on the gate. He knew th, other than his words, there was need for evidence of what he did whc he felt the first respondent was deliberately avoiding personal servic In contrast, in the case of Abu Chiaba Mohamed vs Mohamed Bwar Bakari and 2 others (supra), the petitioner there set out how he kne the respondent; who said he was residing in House No 12 Ole Shapai Avenue in Nairobi; the efforts to serve him at that place; the misleadir information from the respondent's relatives that the respondent was i Saudi Arabia; that an advocate in Mombasa in company of another proce, server went to the respondent's residence in Mombasa to personally sere him. The process server was denied entry into the premises and then tl advocate and the process server were told that the respondent was i Nairobi. When attempts to serve the respondent in Nairobi failed, tl petitioner sent documents to the respondent by registered post to his la known address. When the respondent's residence in Nairobi was visits again on 29" January, 2003, a watchman told the process server that tl respondent was in Mombasa and on 30" January, 2003, the petitioner aga accompanied an advocate and another process server to the respondent residence in Mombasa. On arrival they met a lady who was identific by a watchman as the respondent's wife. That lady drove off from tl premises without acknowledging the process server's attempts to explai the purpose of their visit. The process server then pinned the petition ar other documents intended to be served on the respondent on the gate i the respondent's premises and photographs showing that were attached I the replying affidavit. Also the gazette notice of the filing of the petitic was availed. That was after attempts to physically serve the responder personally failed.

It is certain that the attempts that were made in Abu Chiaba's case (supra could leave no Court with any other conclusion but that the responder in that case was avoiding service. Further, the petitioner in that cas, demonstrated beyond per adventure that he had done all he could ii affecting personal service including pinning the petition and the othe documents at the respondent's gate. In the case before us, there is no reasoi for any Court to conclude that the first respondent was hiding or in an: other way avoiding service upon him of the election petition.

I do therefore find and hold that no satisfactory attempts were made b serve the first respondent within 28 days as is required by section 20(1) (a of the National Assembly and Presidential Elections Act chapter 7 Law of Kenya. I further hold that the action allegedly taken by the appellan to serve the first respondent in this case could not lead to an inferenc that the first respondent was indeed served with the election petition an( notice of presentation of the petition. I may also add that this was perhap because the election petition was filed too late in time and so the appellan had no time available to effect the service as required by law.

In the result, I would dismiss this appeal on grounds that the appellan failed to comply with section 20(1) (a) aforesaid. I have read in draft the judgment of Omolo, JA on the legal position as to whether the learner Judge of the superior court was right in overruling a fellow Judge of the same Court and I agree with his explanation of the law. I have nothin; useful to add on that point. I have also read in draft the judgment o Githinji, JA on whether the service by media after 5. 00 pm was proper. do agree with him fully on his view on the law and I do not need to ads anything on to his judgment.

In view of the foregoing, I would dismiss this appeal with costs to the

ifrst respondent.

Githinji JA. The relevant facts in this dispute have been comprehensivel, stated in the judgment of Onyango Otieno, JA which I have had the advantage of reading in draft. It is not necessary to restate them ii detail.

The result of election of Richard Maoka Maore (I 'I respondent) as ; Member for Parliament for Ntonyiri Constituency was published ii the Kenya Gazette on 3rd January, 2003. By section 20 (1) of Nationa Assembly and Presidential Elections Act (cap 7) (the Act) 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

On 291h January, 2003 Ntoitha M'Mithiaru, the appellant who was the unsuccessful candidate, filed an election petition in the Superior Court seeking the nullification of the election of the 151 respondent. On 3131 January, 2003, the appellant filed a Notice of Motion seeking, orders inter alia, that:

"(a)........................

(b).................................

(c)......................................

(d) In the special circumstances of this petition, service through the Kenya Gazette be deemed proper service.

(e) Leave be granted to serve the 131 respondent Richard Maoke Maore, by way of advertisement in a local radio or television netword".

The application was supported by the affidavit of Mathias Mboya Maithya who deposed, among other things, that on 301h January, 2003 he could not trace the 151 respondent in his office or at his rural residence in Mutuati or at the 1 11 respondents residence in Nairobi for service of the petition.

The Superior Court (Onyancha J) granted an order on 3151 January, 2003 that the:

"Service of the petition be affected by substituted service by mode of advertisement on Kenya Broadcasting Corporation or citizen radio or Kenya Broadcasting Corporation Television or Citizen Television on or before 12. 00 midnight".

On 131h February, 2003 Paul Matheri Wamae, learned Senior Counsel for the petitioner (appellant) filed an affidavit of service deposing, among other things, that the l 31 respondent was served with the petition by radio advertisement. A document from "Citizen and Television Network" was filed showing that a Notice of filing of six petitions including the one relating to the 151 respondent was announced on Citizen Radio on 3131 January, 2003 between 10. 20 pm and 11. 45 pm.

On 71' April, 2003, the 151 respondent filed a Notice of motion under section

20 (1) (a) of the Act for the order that the petition be struck out on the ground that it was notpersonally served on the first respondent within

28 days after the date of the publication of the result of the election in the Gazettee (emphasis mine). The application was supported by three grounds, namely, that:

"(1) The petition and Notice of Presentation of the Petition were not served as provided by the law.

(2) Any purported order by substituted service or to extend the statutory period was and is still null and void.

(3) There is no evidence of any service whatsoever".

At the hearing of the application before Kasanga Mulwa, J Mr Mon learned counsel for the l Sl respondent contended, among other things, t there was no personal service of the petition and that the High Court I no power to order substituted service. He relied on the decision of I Court in Mwai Kibaki vs Daniel Toroitich A Moi (Kibaki vs Moi) [20, 1 EA 115 as authority for the proposition that an election petition m be personally served on the respondent.

On his part, Mr Wamae, submitted that the High Court had power order substituted service and that in this case the petition was served substituted service within 28 days as ordered by the High Court.

The Superior Court considered the provisions of rule 10 and 14 (2) the National Assembly Elections (Election Petition) Rules 1993, (l Election Petition Rules) and concluded that the decision of the Couri Appeal in Kibaki v Moi (supra) that only personal service will suffice respect of election petitions was reached per in curiam saying in part

"I believe the Rules Committee had in mind the mischief that could be brought about by personal service when it consciously excluded requirement of personal service under rule 14 (2). Rule 14 (2) equally does not provide for the service by substituted service.The Rules Committee would have made express provisions for these modes of service if it intended to make the same available to petitioners".

The Superior Court, nevertheless held that no service was effected terms of rule 14 (2) of the Rules; that the order for substituted sere was unlawful and unacceptable and struck out the petition for want service.

It is not necessary to refer to all the 17 grounds of appeal as in my vii grounds 1, 4, 7 and 11 which I reproduce below adequately encompas the appellant's grievances.

They state, that:

"1. The learned Judge erred in holding that service had not been effected on any of the respondents. 2. ......................

3 .........................

4. Having held that service of an election petition by any mode of service prescribed in rule 14 (2) of the Election Petition Rules could be proper, the learned Judge erred in holding that no service had been effected upon any of the respondents contrary to the evidence on record. 5

6. .................

7. The learned Judge erred in invoking the Rules of Civil Procedure in holding erroneously that service by substituted service as ordered was effected out of time.

8. .................

9 .....................

10. ....

1 ].The learned Judge erred in holding that the substituted service was unlawful and unacceptable".

The application in the Superior Court to strike out the petition was based on the ground that the 1 51 respondent had not been personally served with the election petition in accordance with the decision in Kibaki v Moi (supra). The I s respondent's counsel contended that the purported substituted service by radio announcement was null and void. The Superior Court considered rule 10 and 14 of the 1993 Election Petition Rules which relate to the service of notices and election petitions and made findings inter alia, that rule 14 (2) in particular neither provided for personal service nor substituted service. The Superior Court struck out the petition not because there was no personal service but specifically for two reasons. First, that no service was effected in terms of rule 14 (2) of the 1993 election petition rules and secondly, because the order for substituted service was unlawful and unacceptable.

Rule 14 and 10 of the 1993 Election Petition Rules which the Superior Court construed respectively provides:

"14. (1) Notices of the presentation of a petition, accompanied by a copy of the petition, shall within ten days of the presentation of the petition, be served by the petitioner on the respondent.

(2) Service may be effected either by delivering the notice and copy to the advocate appointed by the respondent under rule 10 or by posting them by a registered letter to the address given under rule 10 so that, in the ordinary course of post, the letter would be delivered within the time above mentioned, or if no advocate has been appointed, or no such address has been given, by a notice published in the Gazette stating that the petition has been presented and that a copy of it may be obtained by the respondent on application at the office of the Registrar".

And Rule 10 provides:

"A person elected may at any time after he is elected send or leave at the office of the Registrar a notice in writing signed by him or on his behalf, appointing an advocate to act as his advocate in case there should be a petition against him, or stating that he intends to act for himself and in either case giving an address in Kenya at which notices addressed to him may be left or if no such writing is left all notices and proceedings may be given or served by leaving them at the office of the Registrar".

The decision in Kibaki vs Moi was considered recently by a powerful bet of this Court in Abu Chiaba vs Mohammed Bwana Bakari & 2 others Ci Appeal No 238 of 2003 (unreported). The Court in Abu Chiaba's c was urged to overrule Kibaki vs Moi on the ground that it was reached ] incuriam but the Court, by majority declined to overrule the decision instead distinguished the Abu Chiaba's case from Kibaki vs Moi.

In my dissenting judgment in Abu Chiaba's case, I made a finding t Kibaki vs Moi was decided per incuriam and said in part:

"The law is the same as it was when Kibaki vs Moi was decided. Section 20 (1) (a) of the Act does not decree as the Court in Kibaki vs Moi erroneously, in my view, said that service of Election petitions must be personal. The section does not indeed deal with mode of service. It merely prescribes the time of service. The Court of Appeal did not in Kibaki vs Moi construe rule 14 (2) which is a subsidiary legislation having the same status

as an Act of Parliament. That rule prescribes three statutory mode of service of election petitions which do not include personal service".

The construction of rule 14 (2) by Kasanga Mulwa J conforms with my view in Abu Chiaba's case. I still adhere to that construction. Indeed, I venture to say that both personal service and substituted service as known in order V Civil Procedure Rules are excluded by 1993 Election Petition Rules. In my view, the principle of construction of legislation Expressio unius est exclusio alterius (to express one thing is (by implication) to exclude the other) applies to the construction of rule 14 (2).

There was no evidence that the petition was served on the 1" respondent as stipulated by rule 14 (2). Although the appellant had in the Notice of Motion asked the Court to deem service through Kenya Gazette as proper service there was no evidence to show that the appellant had served the 1 n respondent through publication in the Gazette and the Court did not grant the order. Indeed, the appellant did not file an affidavit nor produce a copy of the Gazette to verify the publication. Had he done so, then the copy of the Gazette should have been prima facie evidence of the due making and tenor of the notice (see section 69 of The Interpretation and General Provisions Act). Thus, I would dismiss the appeal on the ground that the

1 n respondent was not served with the election petition in accordance with rule 14 (2).

Moreover, the substituted service through radio announcement that the appellant relies on is not sanctioned by the law as lawful means of serving election petitions. In my view, in ordering service through electronic media; Onyancha J acted without jurisdiction. It is doubtful that, that service through a radio announcement would be effectual as there is no guarantee that the person intended to be served would hear the announcement. It is even more doubtful in this case that the l11respondent heard the broadcast as it was made late at night between 10. 20 pm and 12. 45 pm. Indeed, there was no evidence that the l Sl respondent ordinarily listens to Citizen radio at that hour or that he was not asleep at that moment in time or that he did infact hear the announcement.

The 1993 Election Petition Rules do not prescribe the time of the day that Election petitions should be served. In the absence of any such provision, the Superior Court applied order XLIX rule 8 (2) of Civil procedure Rules, which provides, in respect of service of pleadings, notices, summons, orders, rules and other proceedings, that:

"Service shall normally be effected on a weekday other than Saturday and before the hour of five in the afternoon".

Section 57 of The Interpretation and General Provisions Act, like ord XLIX Civil Procedure Rules excludes Sundays and Public Holidays reckoning time for doing anything authorized by law. Any civilizf system of law cannot reasonably allow the service of legal processes night when people are supposed to be asleep.

In my view, it would be against public policy and perhaps a breach constitutional right to privacy to serve election petitions outside the offici hours and times specified for service of other court processes. The Superi Court holding that the l11 respondent should have been served before ti hour of five in the afternoon was in my view undoubtedly correct.

Even assuming that service through the radio announcement was lawfi it is clear that the announcement merely gave a notice of the filing of ti petition and required the P1 respondent to obtain a copy of the petiti( from the High Court Registry, Nairobi. Section 20 (1) (a) requires that ti petition be presented and served within 28 days after the date of publicatic of the result of the election in the Gazette.

It is conceded that the 28 days expired on 31" January, 2003 at midnigl By the time the 28 days limitation expired, the 151 respondent indisputab had not been served with the petition itself. Thus, the petition was n served within the time stipulated by the law.

For those reasons, I would dismiss the appeal with costs to tl respondent.

Omolo JA. I had the advantage of reading in draft form the judgme prepared by Onyango Otieno, JA and I gratefully accept his summa of the facts underlying the litigation before us. There is, accordingly, 1 occasion for me to repeat those facts in this brief judgment, except to ti extent where the judgment would be intelligible without a rehash of ti facts.

Section 44 of the Constitution of Kenya which is the supreme law in ti country provides as follows: -

"44(1) The High Court shall have jurisdiction to hear and determine any question whether-

(a) a person has been validly elected as a member of the National Assembly; or

(b) the seat in the National Assembly of a member thereof has become vacant.

44(2) An application to the High Court for the determination of a question under subsection (l)(a) may be made by any person who was entitled to vote in the election to which the application relates, or by the Attorney General.

44(3) An application to the High Court for the 1(

determination of a question under subsection (1) (b) may be made-

(a) where the Speaker has declared that the seat in the National Assembly of a member has by reason of a

provision of this Constitution become vacant, by that 1 `

member; or

(b) in any other case, by a person who is registered as a voter in elections of elected members of the Assembly, or by the Attorney-General.

44 (4) Parliament may make provisions with respect 2(

to

(a) the circumstances and manner in which, the time within which and the conditions upon which an application may be made in the High Court for

determination under this section, and 2`

(c) the powers, practice and procedure of the High Court in relation to the application."

These provisions are clear and unambiguous. They set out which Court has

jurisdiction to hear and determine the matters set out therein, namely the 3(

High Court; it is the High Court as a collective, not a Judge of the High

Court designated by the Chief Justice. All Judges of the High Court have

the constitutional jurisdiction to hear and determine an application made

pursuant to the provisions of section 44 of the Constitution. The section

does not even use the words "Election Petition". It simply employs the 3`

term "application".

But pursuant to the provisions of section 44 (4) Parliament has enacted the National Assembly & Presidential Elections Act, chapter 7 of the Laws of

Kenya and that Act, in accordance with the provisions in section 44 (4) 4(

of the Constitution, sets out: -

"............ the circumstances and manner in which, thetime within which, and the conditions upon which an

application may be made to the High Court," and

"... the powers, practice and procedure of the High Court in relation to the application."

The Act then defines an Election Court as meaning: -

"the High Courtin the exercise of the jurisdiction conferred upon it by section 44(1) of the Constitution."

As far as I am able to tell from the provisions of the Constitution, the Act and the Rules made under the Act, there is no particular provision that only Judges of the High Court designated by the Chief Justice have jurisdiction to hear and determine election petitions. Section 19 which is found in Part VI of the Act specifically provides that:-

"19 (1) An application to the High Court under the Constitution to hear and determine a question whether:-

(a) a person has been validly elected as President; or

(b) a person has been validly elected as a member of the National Assembly; or

(c) the seat in the National Assembly of a member thereof has become vacant, shall be made by way of petition."

Even under that section the application is to be made:- " ... to the High Court,"

not to a Judge of the High Court designated by the Chief Justice. Only section 23(2) of the Act provides that:-

"Unless otherwise ordered by the Chief Justice, all interlocutory maters in connexion with a petition may be dealt with and decided by any Judge."

Does that provision mean that Judges of the High Court who are not designated by the Chief justice to be "Election Court Judges" only have jurisdiction to hear interlocutory matters with regard to election petitions but cannot hear and determine an election petition unless designated to as "election court Judge" by the Chief Justice?

With respect, I would myself summarily reject such a proposition. The jurisdiction to hear and determine election petitions is given to each and every Judge of the High Court by the Constitution itself and even the Act does not purport to limit that jurisdiction. That is clear from the provisions of section 19 of the Act. If the Act purported to limit the jurisdiction only to Judges designated by the Chief Justice, such limitation would clearly be contrary to the provisions of section 44 of the Constitution and by virtue of section 3 of the Constitution, would be void to the extent of the inconsistency. But I have no doubt myself that no provision of the Act with regard to the jurisdiction of all the Judges of the High Court to hear and determine petitions is inconsistent with the provisions of the Constitution. The designation by the Chief Justice of Judges to hear and determine what or which election petition is a matter for administrative convenience to facilitate the operations of the High Court; it is not based on the issue of jurisdiction or lack of it.

How do these considerations apply to this appeal?

The appellant herein clearly filed his petition very late in the day. He had to serve it on the respondents by 3111 January, 2003 and he filed it on 291h January, 2003. For one reason or the other the appellant was unable to serve the first respondent Maoke Maore with the documents required to be served, and so on 3151 January, 2003 the appellant filed a motion before Onyancha J, seeking alternative modes of service. On the same day Onyancha J, made certain orders amongst which was an order granting to the appellant leave to serve the petition in certain stated ways. On that aspect of the matter, I agree with the conclusions of my brother Githinji, JA as to the efficacy of the mode of service granted by Onyancha, J.

What is of interest to me, however, is that after the appellant had complied with the orders given by Onyancha, J the first respondent then made an application to the High Court seeking an order that the petition be struck out because it was not served on him according to law. That motion was eventually heard and determined by Mulwa, J by then a Judge of the High Court with equal and concurrent jurisdiction with Onyancha J, In disposing of that motion, Mulwa, J stated, among other things:-

"In the circumstances, I find that there was no service on the applicant herein or any of the other respondents in the petition as the substituted service ordered was and still is unlawful and unacceptable. For these reasons the petition herein must fail."

The "unlawful and unacceptable mode of service" had been ordered by Onyancha, J and in all respects, the two Judges had the same and equal jurisdiction. Mulwa, J was here declaring as unlawful and unacceptable orders which had been made by Onyancha, J. In our jurisprudence and with the greatest respect to Mulwa, J he himself had absolutely no jurisdiction to declare unlawful and unacceptable the orders made by a brother Judge of equal and concurrent jurisdiction. If this kind of thing was to be allowed to take root, there will, in my view, be total chaos and confusion in the High Court and there would even be no need for the appeal process. The position would have been different if the High Court had been asked to review the orders made by Onyancha, J who himself was not available to review his orders and the Chief Justice had given Mulwa, J permission to review the orders. But here, Mulwa, J was, in effect, being asked to simply declare the orders of Onyancha, J unlawful and unacceptable and he did exactly that. As I have said he had no jurisdiction to do so.

Nevertheless, I agree with Onyango Otieno, JA that this appeal, on the facts, must be dismissed. Githinji, JA also agrees and the order of the Court shall be that the appeal be and is hereby dismissed with the costs thereof to the 1 11 respondent.