Automated Summary
Key Facts
Sofia Galgalo appealed the trial court's dismissal of her election petition challenging the nomination of a Member of County Assembly in Isiolo County. The petition was filed on 8th September 2017 but served on the respondent (IEBC) on 30th October 2017, 52 days after filing, violating Rule 10 of the Election Petition Rules which requires service within seven days. The trial court struck out the petition for late service, and the appeal was dismissed as the court confirmed the service deadline was not met. The court also ruled that Sundays and public holidays were not excluded from the seven-day period since the time limit exceeded six days, and the service on unappointed advocates was invalid. The appeal was deemed without merit, with the court affirming the trial court's correct application of procedural rules.
Issues
- Whether the trial court erred in determining that the respondent was properly served with the petition, despite service being directed to their advocates rather than the IEBC itself, as per the Election Petition Rules 2017.
- Whether the trial court failed to adequately consider the appellant's arguments regarding procedural errors and jurisdictional concerns before making its ruling to strike out the petition.
- Whether the trial court erred in granting prayers that were not explicitly sought by the respondent in its application to strike out the petition, as alleged by the appellant.
Holdings
- The court dismissed the appeal and upheld the trial court's decision to strike out the petition, finding that the petition was served 52 days after filing, which was outside the 7-day period stipulated by the Election Petition Rules 2017. The court emphasized that the gazettement of the Isiolo Court as an election court did not alter the service timeline, as electoral disputes are governed strictly by constitutional and statutory provisions without exception for Sundays or public holidays in this context.
- The court determined that the trial court correctly applied the Election Petition Rules, noting that the petition was not served directly on the respondent but on their advocates who had not yet been officially appointed. This rendered the service invalid under Rule 10, as confirmed by the Florence Akinyi v. IEBC case, which requires direct service on the party or their authorized agents.
- The court rejected the appellant's claim that the trial court failed to consider her submissions, stating that the trial court had analyzed all material before rendering its decision. It also dismissed the argument that the trial court granted unrequested relief, clarifying that the sole relief granted was the striking out of the petition as sought by the respondent.
- The court upheld the validity of the replying affidavit sworn by an advocate, noting that the advocate was testifying to matters within his knowledge or as undertaken by his firm. The trial court's reliance on this affidavit was deemed lawful and not erroneous.
Remedies
The appeal was dismissed with costs.
Legal Principles
The court emphasized that jurisdiction flows from the Constitution or legislation, requiring strict adherence to statutory requirements for election petitions. It applied the Election Petition Rules 2017 rigorously, including timelines for service and the necessity of direct service on the respondent.
Precedent Name
- Wavinya Ndeti vs. IEBC & 4 Others
- Florence Akinyi v. IEBC and 2 Others
- Moses Mwicigi & 14 others v IEBC & 5 others
- Aluodo Florence Akinvi v IEBC & 2 others
- Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited
- Rozaah Akinyi Buyu v IEBC & 2 others
Cited Statute
- Constitution of Kenya
- Elections (Parliamentary and County Elections Petition Rules) 2017
- Civil Procedure Rules
- Elections Act No. 24 of 2011
Judge Name
A. Mabeya
Passage Text
- "It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees' names by the IEBC, as an integral part of the election process. The Gazette Notice in this case, signifies the completion of the 'election through nomination', and finalizes the process of constituting the Assembly in question... It is therefore clear that the publication of the Gazette Notice marks the end of the mandate of IEBC, regarding the nomination of party representatives, and shifts any consequential dispute to the Election Courts."
- "In coming to this conclusion the Court dismissed the argument that Article 159(2)(d) of the Constitution, which obliges the court to administer justice without undue regard to technicalities, could cure the petitioner's situation as failure to effect service was fundamental to the process and a petition that was not served could only suffer the fate of being struck out."
- "Service on the Commission shall be by - (a) delivery at the constituency, county or head office of the Commission; (b) delivery at such other office as the Commission may notify; or (c) an advertisement that is published in a newspaper of national circulation."