https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9756

Shilova v Attorney General & 2 others (Constitutional Petition E005 of 2026) [2026] KEHC 9756 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9756 (KLR) Republic of Kenya In the High Court at Vihiga Constitutional Petition E005 of 2026 RN Nyakundi, J July 6, 2026 IN THE MATTER OF ARTICLES 1, 2, 3, 4, 10, 11(2), 19, 20, 21, 22, 23, 24, 27, 33(1)(b), 40, 43, 47, 55(b) & (c), 73(1) & (2), 94(1) & (5), 109, 129, 131(2), 132(4), 258, 259 AND 260 OF THE CONSTITUTION OF KENYA, 2010 -AND- IN THE MATTER OF THE NATIONAL YOUTH COUNCIL ACT NO. 10 OF 2009-CONCERNING-THE NATIONAL YOUTH COUNCIL (ELECTION OF CERTAIN COUNCIL MEMBERS) REGULATIONS, 2021 Between Robinson Isoyi Shilova Petitioner and The Hon Attorney General 1st Respondent Cabinet Secretary for Youth Affairs, Creative Economy and Sports 2nd Respondent National Youth Council 3rd Respondent Ruling A. Introduction 1.Before the Court is the Petitioner/Applicant’s Notice of Motion dated 22nd June 2026, expressed to be brought under the several Articles of the Constitution of Kenya, 2010 set out on its face, Sections 6, 9, 10 and 11 of the National Youth Council Act No. 10 of 2009, and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (“the Mutunga Rules”). 2.The Motion seeks, in substance, the following orders:a)that the application be certified as urgent and be heard ex parte in the first instance;b)that, pending the inter partes hearing of the application, a conservatory order do issue staying/halting the implementation of Gazette Notice No. 5586 issued by the 2nd Respondent, in so far as it applies to the elections of council members of the National Youth Council;c)that, pending the hearing and determination of the Petition, a like conservatory order do issue staying/halting the implementation of the said Gazette Notice No. 5586; andd)that costs be in the cause. 3.The Motion is supported by the Petition and the Supporting Affidavit of Robinson Isoyi Shilova, and is premised on the grounds set out on its face. B. Background 4.The substratum of the Applicant’s case is Gazette Notice No. 5586, issued on 17th April 2026 by the Cabinet Secretary for Youth Affairs, Creative Economy and Sports, Hon. Salim Mvurya, and titled “Dates for the National Youth Council Elections.” By that Notice, the following dates were designated:a)Ward Level Elections — to take place from 5th July 2026;b)Constituency Level Elections — to take place from 16th July 2026; andc)National Youth Congress Elections — to take place from 27th July 2026. 5.The Applicant, who describes himself as a Kenyan youth aged 23 years and a resident of Emuhaya Constituency, Vihiga County, contends, among other things, that there was no comprehensive civic education and sensitisation ahead of the elections, the civic education being conducted only online to the exclusion of youth in rural areas without access to digital platforms and of persons with disabilities, contrary to Articles 10(2) and 27 of the Constitution; that there was poor communication regarding the timelines, structures, activities, procedures and dates of the electoral process; and that the process lacked accountability and transparency and had no clear legal and structural framework. On these grounds he moved the Court for conservatory orders staying the implementation of the Gazette Notice pending the hearing of the Petition. C. Directions and the purported service 6.On 23rd June 2026 the Court gave directions on the Motion, including directions touching on service of the application upon the Respondents. Pursuant thereto, the Applicant’s advocates placed on the record an Affidavit of Service sworn on 29th June 2026 by Wanjala Mukonyi, an advocate of this Court practicing in the firm of Mukonyi and Company Advocates. 7.In that affidavit the deponent depones that he is the advocate for the Petitioner and is competent and authorised to serve process; that upon issuance of the Court’s orders and directions of 23rd June 2026 he “purposed to serve” the Respondents; and that on 24th June 2026 he “caused to be served” the Certificate of Urgency, Notice of Motion, Petition and Supporting Affidavit upon the Respondents at the following addresses:a)the 1st Respondent, the Hon. Attorney General, at the Offices of the Attorney General situate at Sheria House, Ground Floor, Harambee Avenue, Nairobi (Post Office Box 40112–00100, Nairobi; email communications@ag.go.ke), at about 10.00 a.m.;b)the 3rd Respondent, the National Youth Council, at its offices situate at Absa Towers, 12th Floor, Loita Street, Nairobi, at about 11.00 a.m.; andc)the 2nd Respondent, the Cabinet Secretary for Youth Affairs, Creative Economy and Sports, at the offices situate at Talanta Plaza, Upper Hill, Nairobi (Post Office Box 49849–00100, Nairobi; email info@moyasa.go.ke). 8.In each instance the deponent states only that “the Documents were received and stamped on the face of each document signaling acknowledgment of Service,” and that he now returns the duly signed and stamped documents as proof of service. D. Issue for determination 9.Having considered the Motion, the Supporting Affidavit, the Affidavit of Service and the record as a whole, the sole issue that falls for determination at this stage is whether the Respondents were properly served with the application and, if not, what orders ought to follow. E. Whether the Respondents were properly served 10.Service of process is not an empty formality. It is the means by which a party is brought before the Court and made aware of the case he is called upon to answer, and it is the foundation upon which the Court assumes jurisdiction to proceed as against that party. The right to be heard, guaranteed by Article 50(1) of the Constitution and embodied in the maxim audi alteram partem, presupposes that a party has first been served and afforded notice of the proceedings. A court will therefore not proceed against a party, still less grant orders affecting his interests, unless it is satisfied on the material before it that he has been served in the manner the law prescribes. That caution is heightened in the present matter, where the Court’s directions of 23rd June 2026 themselves contemplated service upon the Respondents before the application could be canvassed. 11.It is true that Rule 23(2) of the Mutunga Rules permits service of an application for conservatory or interim orders to be dispensed with, with the leave of the Court. But no such dispensation was sought or granted in this matter. On the contrary, the Applicant undertook to serve the Respondents and has placed a return of service on the record. Having elected to serve, and having done so pursuant to the Court’s directions, the Applicant’s return of service must, on its face, demonstrate service effected in accordance with the law; he cannot invoke a dispensation he neither sought nor obtained. 12.The governing provision is Order 5 rule 15 of the Civil Procedure Rules. It requires that the serving officer swear and annex to the process an affidavit of service stating the time when, and the manner in which, service was effected, and the name and address of any person identifying the person served and witnessing the delivery or tender of the process, with such variations as the circumstances may require. It follows that a proper affidavit of service must disclose, on its face, at least three things: who effected service; upon whom service was effected; and how the person served was known to, or identified by, the server. In a constitutional petition, Rule 23(3) of the Mutunga Rules reinforces this by requiring that the orders be personally served on the respondent or the advocate on record, or, with the leave of the Court, by substituted service. 13.Two further principles follow from the scheme of Order 5 of the Civil Procedure Rule of 2010. First, service is to be effected, and the return sworn, by the person who actually carried out the service. A process server is an officer of the Court, accountable to it for the service he professes to have effected and liable to be summoned and examined upon that service under Order 5 rule 16; his affidavit must accordingly proceed from his own knowledge of the physical act of service. Secondly, the affidavit must set out the particulars that render the service verifiable — a description of the server, how he came to know or identify the person served, that he introduced himself and disclosed the nature of the process, in whose presence the delivery was made, and whether the person served acknowledged or declined receipt. An affidavit that omits these particulars leaves the Court unable to satisfy itself that service in truth reached the intended party. 14.Where the party to be served is a body corporate or a public office, a further requirement attaches. Under Order 5 rule 3 of the Civil Procedure Rules, service upon a corporation is, in the first instance, to be effected upon its secretary, director or other principal officer, or otherwise upon a person shown to be authorised to receive it. The 3rd Respondent, the National Youth Council, is a body corporate established under the National Youth Council Act, No. 10 of 2009; the 1st and 2nd Respondents are public offices served through their respective coordinate. In each case the affidavit of service must identify the individual who received the process and show that he or she held a capacity that made the receipt effective service upon the Respondent. Delivery to an unidentified person at the reception of an office, without more, does not establish that the process reached someone competent to receive it on the Respondent’s behalf. 15.The courts have consistently held that an affidavit of service which omits these particulars is defective and cannot prove service. In Kiprotich v Maata [2024] KEHC 808 (KLR), service was found defective where the process server failed to disclose how he came to know the persons served and failed to state the time and manner of service. In the same vein, an affidavit that does not disclose the identity of the person who received the documents, or that person’s authority to receive service on behalf of the entity served, does not establish proper service: a stamp affixed by an unidentified recipient does not, without more, prove that the process reached a person authorised to receive it on the Respondent’s behalf. 16.Measured against these requirements, the Affidavit of Service sworn on 29th June 2026 is, on its face, defective in several respects:a)It is sworn by the Applicant’s advocate on record, Wanjala Mukonyi, who deposes not that he personally served the Respondents but that he “caused to be served” the documents. On his own showing, therefore, the deponent did not himself effect service; yet the affidavit does not disclose the identity of the person who physically effected it — the process server through whom service was in fact “caused” to be made. A return of service ought to be sworn by, or at the very least to name and identify, the person who actually carried out service, that person being an officer accountable to the Court for the service he professes to have effected.b)The affidavit does not disclose the name, designation or capacity of the person who received the documents at any of the three offices. It states only that the documents were “received and stamped.” It is nowhere stated who — at the Office of the Attorney General, at the National Youth Council, or at the office of the Cabinet Secretary — received the process, or whether that person was authorised to receive service on behalf of the Respondent concerned.c)The affidavit does not state that the server identified himself, or how he ascertained the identity or authority of the person to whom the documents were tendered, or in whose presence the delivery was made.d)Not having himself effected service, the deponent is in no position to speak, of his own knowledge, to who received the documents at each office; yet the affidavit neither names the actual server nor discloses the source of the deponent’s information as to the identity of the recipients. Proof of the identity of the persons served — the very particular that Order 5 rule 15 requires — is thus not merely deficient but altogether absent. 17.The affidavit therefore records only the physical coordinates of the offices at which delivery is said to have been made — the Office of the Attorney General at Sheria House, Ground Floor, Harambee Avenue, Nairobi; the National Youth Council at Absa Towers, 12th Floor, Loita Street, Nairobi; and the office of the Cabinet Secretary for Youth Affairs, Creative Economy and Sports at Talanta Plaza, Upper Hill, Nairobi. It does not disclose the persons served at those coordinates. The identity of the process server and of the recipients being the very particulars that Order 5 rule 15 demands, their omission renders the return defective and insufficient to establish that the Respondents were served. 18.Taking the return as a whole, the Court is unable to satisfy itself that any of the three Respondents was in fact served with the application. The Affidavit of Service does not disclose who served the process, who received it, or by what authority it was received; it establishes, at most, that documents bearing the Respondents’ stamps found their way back to the Applicant’s advocates. That falls short of what Order 5 rule 15 of the Civil Procedure Rules and Rule 23(3) of the Mutunga Rules require, and no order affecting the Respondents can properly be founded upon it. F. Disposition 19.For the foregoing reasons, the Court finds that the Respondents were not properly served, the Affidavit of Service sworn on 29th June 2026 being defective for non-compliance with Order 5 rule 15 of the Civil Procedure Rules and Rule 23(3) of the Mutunga Rules. Rather than shut out the Applicant upon a defective return, and mindful of the overriding objective of the just, expeditious and proportionate resolution of disputes, the interests of justice favour affording the Applicant a short and fixed opportunity to effect proper service so that the application may be heard, on notice to the Respondents, on its merits. 20.Accordingly, the Court makes the following orders:a)The Affidavit of Service sworn on 29th June 2026 is found to be defective and is hereby struck out; the purported service disclosed therein does not constitute proof of service upon the Respondents.b)The Applicant shall, within three (3) days of the date of this Ruling, effect fresh service of the Certificate of Urgency, Notice of Motion, Petition, Supporting Affidavit and a copy of this Ruling upon the 1st, 2nd and 3rd Respondents, in strict compliance with the Civil Procedure Rules and the Mutunga Rules.c)The application shall thereafter be heard inter partes on Thursday the 9th day of July 2026 to confirm service and to take a hearing date.d)Such service shall be effected by a duly authorised process server, who shall thereafter promptly swear and file an affidavit of service disclosing the date, time, manner and place of service, and the name, designation and capacity of the person served at each of the Respondents’ offices.e)In default of proper service and the filing of a proper affidavit of service within the time hereby limited, the matter shall be listed before the Court for further directions.f)There shall be no order as to costs. 21.Orders accordingly. DATED AND DELIVERED AT VIHIGA THIS 6TH DAY OF JULY 2026...................................R. NYAKUNDIJUDGE