[2013] KEHC 78 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ELECTION PETITION NO. 8 OF 2013

AND IN THE MATTER OF THE

NATIONAL ASSEMBLY ELECTION

FOR KITUI EAST CONSTITUENCY

BETWEEN

PATRICK NGETA KIMANZI............................................PETITIONER

AND

MARCUS MUTUA MULUVI...............................1ST RESPONDENT

ALICE KIMANI

(RETURNING OFFICER) ……………..............2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION...........................3RD RESPONDENT

RULING NO. 2

Introduction and background

1. After the general election held on 4th March 2013, the 1st respondent was returned as the Member of the National Assembly for Kitui East Constituency. The petitioner, a registered voter and agent of one of the candidates in that election, filed this petition on 10th April 2013 challenging the election of the 1st respondent.

2. On 13th May 2013, the 1st respondent moved the court by a Notice of Motion seeking the following orders;

THAT the Petitioner’s Petition dated 10th April 2013 and filed in this Honourable Court on the same day, challenging the election of the first respondent as the Member of Parliament for Kitui East Constituency be dismissed for want of compliance with mandatory statutory requirements on time, service and deposit of security.

THAT in any event, this Honourable Court be pleased to give directions on the filing of a response by the first respondent.

THAT the costs of this application and the entire petition be awarded to the first Respondent.

3. By a ruling dated 28th May 2013, I dealt with the issue of depositing the security as required under section 78 of the Elections Act, 2011 (“the Act”) which provides that if no deposit is paid no proceedings shall be heard on the petition. In the ruling, I declined to strike out the petition and gave the petitioner an opportunity to furnish security and he duly complied.

4. The issue that is now left for determination in the application and the subject of this decision is that of service of the petition. As service was contested, I directed that the process server, Paul Biage Motanya be cross-examined on the contents of his Affidavit of Service and the 1st respondent to be cross-examined on the contents of his affidavit filed in response to the affidavit of service. The 1st respondent’s driver, Kyalo Mbiti, who had sworn an affidavit, was also cross-examined.

5. The respective counsel thereafter made oral submissions on the two issues for consideration as follows;

Whether the 1st respondent was served with the petition.

If not, whether service of the petition within the time provided is mandatory.

Whether the petition was served on the 1st respondent

6. The mode of service chosen by the petitioner was personal service. The central issue for consideration then is whether the petition was served personally and the duty of the court when faced with conflicting affidavit evidence regarding alleged service of court process is to consider which of the versions put forth by the petitioner and 1st respondent is true.

7. The approach to be taken in such a determination was considered in the case of Dickson Daniel Karaba v John Ngata Kariuki and OthersCA Civil Appeal No. 125 of 2008(Unreported). The Court of Appeal stated as follows, “The central issue in this whole matter was to establish the truth about service of the petition filed by the appellant, on the 1st respondent. The truth ought to have been established on a balance of probabilities and it lay between the stories put forward by the process server and his supporter, and by the 1strespondent and his supporter. Indeed the Superior Court and the parties appreciated the imperative at an early stage of the proceedings and the Court made orders, correctly in our view, that the process server and the first respondent be examined on their affidavits. There was a good reason for that order, traceable to the law on such matters, that there is a presumption that the court process was properly served unless such a presumption is rebutted. We allude to the case of Shadrack arap Baiywo v Bodi Bach Civil Appeal No. 122/86 cited and applied in Miruka v Abok and Another [1990] KLR 544 …”(See also MB Automobile v Kampala Bus Service [1966] EA 480, Karatina Garments Limited v Nyanarua [1976] KLR 94).

8. The 1st respondent in his affidavit in support of the application to strike out the petition, states that he has not been served with the petition to date. He states that he only got to learn of the existence of the petition when the election court was constituted by the Chief Justice through the Gazette Notice No. 5381 published on 19th April 2013. He thereafter instructed his advocates to write to the Deputy Registrar of the Court a letter dated 29th April 2013 requesting for copies of the petition and other documents. The application to strike out the petition was subsequently filed on 13th May 2013.

9. The petitioner’s version was contained in the affidavit of service sworn by Paul Biage Motanya on 17th April 2013 and filed on 31st May 2013. In the affidavit he states as follows;

[1] THAT I am a duly licensed process server appointed by the High Court hence competent to swear this affidavit.

[2] THAT on 16/04/2013 at 9. 30 am I received an election petition together with affidavits from Jackson Omwenga& Co. Advocates with instructions to serve the first respondent.

[3] THAT while in the company of petitioner herein we proceeded to county hall and stood strategically near parliament police station facing the main gate of parliament.

[4] THAT around 10. 15am the petitioner saw the first respondent walking towards the main gate of parliament and as the petitioner alerted me of his presence I rushed and requested the first respondent to stop.

[5] THAT the first respondent stopped and looked at me and asked me what was the issue. I then introduced myself and the reason why I wanted to see him.

[6] THAT I then asked himwhether he was the first respondent and he introduced himself as Major Mutua and confirmed he was the first respondent.

[7]THAT I then tendered to him the petition which he accepted service and received but did not sign on my copy saying that there was no need to sign and he will act on it.

[8]THAT at the time of service the first respondent was in spectacles with short haircut and clean shaved beards and was known to me at the time of service.

[9] THAT I return petition duly served.

10. In response to the affidavit of service, I granted leave to the 1strespondent to file a further affidavit. He swore an affidavit on 10th June 2013. The affidavit contains matters of opinion and argument which I will disregard as an affidavit is required to depone to matters of fact. However, the material part is to be found at paragraph 19 where he depones to his whereabouts on the 16th April 2013 when he is alleged to have been served. In summary, the 1st respondent states that he left his residence at Mountain View, Nairobi at around 8 am and headed to his office at Hazina Towers to attend a scheduled meeting of Computex Office Systems Limited in which he is a director. The meeting was scheduled to start at 9. 30 am as he had been earlier notified.

11. The 1st respondent states that the meeting commenced at 9. 45 am and continued until 12. 00 noon. He states that at about 12. 40pm he proceeded to Parliament driven by his driver, Kyalo Mbiti, in his Toyota Prado registration number KBL 958T to attend the scheduled opening of Parliament by His Excellency the President. He was driven by his driver through the main gate facing County Hall and dropped off at the rear entrance of Parliament Chamber which is within the precincts of Parliament. He alighted and his driver drove off. The 1st respondent depones to the fact that the Clerk to the National Assembly had directed that all vehicles dropping off Members of Parliament should be driven off to parking areas reserved at the Continental Building, County Hall and COMESA KICC grounds.

12. Kyalo Mbiti, the 1st respondent’s driver, also swore an affidavit on 10th June 2013 where he deponed that he drove the 1st respondent from home to his offices at Hazina Towers. He remained at the offices until the 1st respondent left the meeting at about 12. 00 noon. He drove the 1st respondent to Parliament at about 12. 40. He states that he arrived at Parliament at around 1pm and drove him straight to the rear entrance to Parliament Chamber within the precincts of Parliament. He then drove off to park the car at Hazina Towers as he had done so many times. He picked him up later at 6. 00 pm and drove him home.

13. In support of the application to strike out the petition, Mr Kimuli, learned counsel for the 1st respondent, submitted that the evidence disclosed that the 1st respondent was not served and that the circumstances set out in the affidavit were manufactured to demonstrate service. This was evidenced by the fact that the affidavit of service was not filed immediately after service and that no affidavit of service was filed to prove service upon the 2nd and 3rd respondents. He stated that the process server did not indicate or set out circumstances which made him believe that service would succeed on the first attempt. Further, that the process server did not set out with particularity the identity of the 1st respondent particularly because he was not acquainted with him. Counsel further asserted that the process server had at least confirmed that on the material day there was heavy security around Parliament Building and the roads were closed to all vehicular traffic except to those with special stickers. He urged the court to take into account that the 1st respondent had accounted for his time on the material date when service is alleged to have taken place. Mr Kimuli cited the case of Bernard Mwendwa Munyasia v Charity Ngilu and OthersMachakos EP No. 1 of 2008 (Unreported)to emphasise the importance service and for the proposition that in the absence of service the court has jurisdiction to strike out the petition.

14. Ms Wambua, learned counsel for the 2nd and 3rd respondents, supported the application to strike out the petition. She submitted that service of the petition was mandatory and where there was no service the petition ought to be struck out. She submitted that the issue in this case was one of lack of service not of improper service and once the petitioner had elected a mode of service, service must be effected accordingly.Counsel cited the case of Nyamweya v Oluoch and Others [1993 – 2009] 1 EAGR 377 to support her submission.

15. Mr Omwenga, learned counsel for the petitioner, was of the view that the process server was clear whom he had served. The 1st respondent was pointed out by the petitioner in court and he identified himself as “major” which is the name he is known by. Counsel submitted that the meeting allegedly attended by the 1strespondent could not be verified as the minutes had not been filed at the Companies registry. Furthermore, no other person amongst the attendants of that meeting had sworn an affidavit to confirm the meeting. Mr Omwenga contended that the 1st respondent deliberately failed to respond to the petition even though he was aware of proceedings against him as he waited until 19th May 2013 to file the application to strike out the petition.He stated that the petitioner had come to court by reason of the service effected on him and no prejudice would be occasioned if the matter proceeded for hearing as it is the duty of the court to hear the matter and there is no provision in the Act and Article 87(2) of the Constitution for striking out the petition.

16. Mr Omwenga cited the case of Justus Mungumbu Omiti v Walter Enock Nyambati Osebe and 2 Others CA Nairobi Civil Appeal no. 183 of 2008 (Unreported) where the Court of Appeal held that there was no requirement in the Rules that the affidavit of service be filed immediately after service or at all. He also cited Nasir Mohammed Dolal v Duale Aden Bare and Others (Supra)where Justice Visram (as he then was) held that the matter of service should be decided on the balance of probabilities.

17. I heard the three deponents who were cross-examined on their depositions. The deponents stuck to the respective versions in cross-examination. I now take the following view of the matter.

18. It is common ground that on the date of service, 16th April 2013 there was an official function at the Parliament Buildings. It is not disputed that on that day His Excellency the President was scheduled to address a joint sitting of the National Assembly and the Senate at 2. 30 pm as per the programme annexed to the 1st respondent’s replying affidavit. It is also common ground that the area around the Parliament Building was heavily secured as is common with such functions. Although both parties have contested whether there were vehicles parked around County Hall, I do not think that this issue is decisive of any determination.

19. Is it possible then that the petitioner and the process server would lie in wait at County Hall for the 1st respondent to appear at about 9. 30am from County Hall and walk into Parliament?

20. Because of the security situation, I think it was highly unlikely that the petitioner and his process server would be permitted to be near the gates of Parliament let alone proceed to effect service on the 1st respondent. Even if the security personnel permitted people to gather around County Hall, it is not clear from the affidavit or any other evidence how the petitioner came to the know that the petitioner would be at County Hall walking to Parliament at 9. 30 am on the material day at precisely that hour when the only function in Parliament on that date was the President’s official address which was scheduled to commence at 2. 30 pm.

21. I am inclined to believe the 1st respondent’s version of events where he gives a precise account of his day consistent with the Parliamentary Programme. His version of events is supported by the fact that the Clerk of the National Assembly has issued a memo setting out driving and parking arrangements for Members of Parliament which the 1st respondent complied with.

22. The fact of non-service is also corroborated by the letter dated 29th April 2013 to the Deputy Registrar of the High Court Machakos from his advocates Mutunga and Company Advocates where he requested to be supplied with copies of pleading after he had learnt that a petition had been filed against him. This letter would not have been written had the petition been served by that date.

23. Taking all these facts together, I have come to the conclusion that on the balance of probabilities it is more likely than not that the 1st respondentwas not personally served with the petition as required by the law. I shall now turn to address the consequences of this finding.

Whether service of the petition is mandatory

24. The issue of service of the petition is dealt with in Article 87 of the Constitution which provides as follows;

Electoral disputes.

87. (1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.

(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

(3) Service of a petition may be direct or by advertisement in a newspaper with national circulation.

25. The provisions of Article 87 are reiterated in section 77 of the Elections Act, 2011. Although the side note tosection 77reads “Service of Petition,”it does not deal with service it provides;

77. (1) A petition concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Commission.

(2) A petition may be served personally upon a respondent or by advertisement in a newspaper with national circulation.

26. Two conclusions can be drawn fromArticle 87and section 77 of the Actin so far as service of the petition is concerned. First, while the provisions provide for the time of filing of the petition, they do not deal with time for service. Second, the mode of service is specifically prescribed. The petitioner is provided with two options to effect service; direct or personal service or service through advertisement in a newspaper with national circulation.

27. The time for service of the petition is dealt with bysection 76(1)(a)of the Act which is in the following terms;

76. (1) A petition—

to question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette and served within fifteen days of presentation;[Emphasis mine]

The Elections (Parliamentary and County Elections) Petition Rules, 2013 (“the Rules’)make provision for the time of service. Rule 13(1) provides that, “The Petitioner shall serve the Respondent with an election petition filed under these Rules, within fourteen days of filing the petition.” This provision is ultra viressection 76(1)(a) of the Act in so far as it provides one day less for service (See Maitha v Said Hemed and Another(2008) 2 KLR (EP) 337).

28. The background leading to the enactment of these provisions is well known and documented. The provisions of the Constitution and Elections Act, 2011regarding the mode of service were intended to ameliorate the rigours imposedsection 20 of the thenNational Assembly and Presidential Elections Act (Repealed) and theinterpretation given by the courts that personal service of the petition was the best form of service and that other modes of service could only be resorted to when the petitioner had exercised due diligence in effecting personal service on the petitioner. See generally Kibaki v Moi[2000] 1 E A 115, Abu Chiaba Mohamed v Mohamed BakariCA Civil Appeal No. 238 of 2003 (2005)eKLR, M’Mithiaru v Maore and Others (No. 2) (2008) 3 KLR (EP) 730, Justus Mungumbu Omiti v Walter Enock Nyambati Osebe and 2 Others(Supra)and Nasir Mohammed Dolal v Duale Aden Bare and Others Nairobi EP No. 28 of 2008 (Unreported).

29. The situation has now changed and the petitioner has the right to elect the mode of service either by way of advertisement in a newspaper of national circulation or by direct service.It is noteworthy that the section 77 of the Act uses the term, “personal service” rather than “direct service.”In Abdikham Osman Mohamed and Another v Independent Electoral and Boundaries Commission and OthersGarissa EP No. 2 of 2013 (Unreported), Hon. Justice Mutuku dealt with the issue of direct service envisaged under the Article 87 and section 77 of the Act as follows, “[8] What is personal or direct service? The Constitution refers to direct service; the Act refers to personal service while the Rules refer to direct service. The Black’s Law Dictionary (Eighth Edition) defines personal service as “actual delivery of the notice or process to the person to whom it is directed”. It also states that personal service is termed as actual service. I think I am not wrong to state that personal service and direct service refer to the same mode of service which connotes the physical presence of the person being served.” Likewise Hon. Justice Kimondo in Steven Kariuki v George Mike Wanjohi and Others Nairobi EP No. 2 of 2013 (Unreported) observed that, “Section 77 (2) of the Elections Act 2011 and Rule 13 of the Elections (Parliamentary and County Elections) Petition Rules 2013 provide for the modes of service of an election petition. They are a departure from the era of personal service touted in Kibaki vs Moi [2000] 1 E A 115. Now, service can be either personal on the respondent or by advertisement in any daily newspaper with national circulation. In the latter case, the advertisement must be carried within 14 days and conform with the requirements of Form EP 3 in the Rules. Section 77 (2) provides that the petition may be served personally. Rule 13 (a) of the Petition Rules states that the petition shall be served by direct service. Article 87 of the Constitution also uses the term direct service. On the face of it, the two terms may seem different but on closer scrutiny direct or personal service is mere tautology: it simply means service personally on the respondent.” I agree with these sentiments.

30. Although the regime of service of election petitions has been liberalised. The requirement of service was not dispensed with. Service of the petition is still a requirement under the Constitution, the Act and the Rules. Without service, the opposite party is denied the opportunity to defend the case. Service is an integral element of the fundamental right to a fair hearing which is underpinned by the well-worn rules of natural justice.As a component of due process, it is important that a party has reasonable opportunity to know the basis of allegations against him. Elementary justice demands that a person be given full information on the case against him and given reasonable opportunity to present a response. In Kumbatha Naomi Cidi v County Returning Officer, Kilifi and Others,Malindi EP No. 13 of 2013 (Unreported), Hon. Justice Muchemi dealt with a petition that was not served as follows, “The petition was filed within the stipulated period but it was not served. Any pleading filed and not served on the opposite party has no legal force. It cannot be dealt with by the court and no lawful order can be drawn from it. Service of a pleading accords the opposite party the chance to be heard. It is my considered opinion that this petition is a petition that never was.”

31. InMohamed Odha Maro v the County Returning Officer, Tana River and Others,Malindi EP No. 15 of 2013 (Unreported)Justice Githua had this to say about service. “The purpose of service of a petition is to give notice to the Respondents or persons affected by the petition that a petition had been filed challenging the outcome of the elections and the grounds upon which the challenge had been instituted to enable them prepare their responses and to defend their respective positions regarding the conduct of the contested elections. Service provides the Respondents with an opportunity to be heard and goes to the root of the all important tenets of the principle of fair trial and good administration of justice... Failure to serve a Petition is a matter that goes to the very core of the proper and just determination of the petition and cannot be wished away.”

32. I concur with the positions taken by the learned Justices and I find and hold that service of the petition is a mandatory requirement and a petition that has not been served cannot proceed for hearing as the respondent is denied the opportunity to contest the facts in the petition. Mere knowledge of existence of a petition by the respondent can neither cure want of service nor discharge the burden of service imposed on the petitioner by the law.

Conclusion

33. The Supreme Court in Raila Odinga and others v Independent Electoral and Boundaries Commission and 3 othersNairobi Petition No. 5 of 2013 [2013]eKLRaddressed the meaning of Article 159(2)(d). It stated, “The essence of that provision is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone, and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case and conscientiously determine the best course.”

34. As I stated earlier in the judgment, service of the petition is not a mere procedural requirement that can be dispensed with but is a mandatory requirement that must be complied with. It is the cornerstone of the right to a fair hearing for without service there can be no fair hearing or hearing at all. It is service of process that triggers all the other steps in the election petition under the Rules.The duty cast on the petitioner under Article 87, the Act and the Rulesare to effect service of the petition. This duty cannot be discharged by implication or supposition but by actual service in the manner contemplated or prescribed by the Constitution and the Act. It is not a mere technicality that can be swept aside by application of the provisions of Article 159(2)(d) and the overriding objective set out in rules 4and5 of the Rules. Unless waived by the respondent, service must be effected as it is an essential and mandatory step and an affected party is entitled to apply to the court to strike out the petition for want of service.

35. Contrary to the assertion by Mr Omwenga that the Court lacks jurisdiction to strike out the petition, it is not in doubt that the court has jurisdiction to strike out a defective pleading or one that fails to comply with mandatory legal procedures. In Chelaite v Njuki and Others (No. 3) (2008) 2 KLR 209), Pall JA stated that, “Once the Election Court is satisfied that due to failure to serve the petition within the time prescribed by the law, the petition has become a nullity it surely has the power to strike it down without any more ado.” Striking out is intended to remedy non-compliance with the law and uphold its application (see Nyamweya v Oluoch and Others (Supra)). As Hon. Justice Lenaola stated in Bernard Mwendwa Munyasia v Charity Ngilu and Others(Supra), “[31] Striking out any pleading is a drastic remedy and this court would be the last to wield that painful knife but the law as I understand must be upheld in that regard.”

36. For all the reasons I set out above, the petition must be struck out and it is hereby struck out.

Costs

37. Section 84 of the Act provides that, “An election court shall award the costs of and incidental to a petition and such costs shall follow the cause.” Such costs are to follow the event and the Court has broad jurisdiction to determine costs (See Charles K. Waibara and Another v Francis Kigo and Others Nairobi EP No. 15 of 2013 para 62per Mwongo J., and Kituo cha Sheria v John Ndirangu Kariuki and Another Nairobi EP No. 8 of 2013 paras 45 and 46per Kimondo J.). Rule 36 (1) oftheRulesprovide as follows:

36 (1) The Court shall, at the conclusion of an election petition, make an order specifying –

a) the total amount of costs payable; and

b) the person by and to whom the costs shall be paid.

Under rule 37if the Court does not determine the costs, the Registrar of the Court is required to tax such costs.

38. As the 1st respondent has succeeded in the application, he shall have the costs of the application and the petition. The 2nd and 3rd respondents who have responded to the petition are also entitled to costs for defending the petition. I have taken into account the fact that the matter has not been heard substantively, the pre-trial conference has not been heldand the matter has now been determined on an interlocutory application. In the circumstances, I cap the total aggregate costs for both parties at Kshs. 600,000/00. The costs shall be taxed and certified by the Deputy Registrar and shall be paid out of the security deposit to the parties on a pro-rata basis.

Disposition

39. The final orders are therefore are follows;

The petition be and is hereby stuck out.

The 1st respondent is awarded costs of the petition and the application while the 2nd and 3rd respondents are awarded costs of the petition. The costs shall be taxed and certified by the Deputy Registrar.

The aggregate costs for the parties are capped at Kshs. 600,000/00 and shall be paid out of the security deposit on a pro-rata basis.

A certificate of this determination in accordance with section 86(1) of the Elections Act, 2011 shall issue to the Independent Boundaries and Electoral Commission and the Speaker of the National Assembly.

DATED and DELIVERED at MACHAKOSthis 17th day of June 2013.

D.S. MAJANJA

JUDGE

Mr Omwenga instructed by Jackson Omwenga and Company Advocates for the petitioner.

Mr Kimuli instructed by M. M. Kimuli and Company Advocates for the 1st respondent.

Ms Wambua instructed by Anne M. Kiusya and Company Advocates for the 2nd and 3rd respondents.