Automated Summary
Key Facts
The court dismissed an election petition filed by Joshua Mbithi Mwaluo challenging Benson Itwiku Mbai's parliamentary election victory in Masinga Constituency. The petition was struck out due to failure to serve the Applicant (Benson Itwiku Mbai) within the 28-day period mandated by section 20(1)(a) of the National Assembly and Presidential Elections Act. The Applicant argued the petition was invalid as no service was made by gazette or newspaper publication either, while the Petitioner claimed due diligence in attempts to serve. The court referenced precedents affirming that unserved petitions must be dismissed to avoid miscarriage of justice.
Issues
- The court determined whether the Petition was properly served within the 28-day period mandated by section 20(1)(a) of the National Assembly and Presidential Elections Act.
- The court addressed the interpretation of proviso (iv) in section 20(1) of the Act, which allows for alternative service methods if due diligence is exercised within the 28-day period.
Holdings
- The court held that proviso (iv) to section 20(1)(a) does not extend the 28-day service deadline but merely provides alternative service methods when due diligence has been exercised. Since no service was made within the prescribed period, the Petition remained incompetent.
- The court determined that the Petition was invalid due to failure to serve the Applicant within the mandatory 28-day period under section 20(1)(a) of the National Assembly and Presidential Elections Act. Consequently, the Petition was struck out and dismissed with costs to all Respondents.
- The court found that the Petitioner's argument for extending the service period was misguided, as the Statute Law (Miscellaneous Amendments) Bill, 2005, which would have removed the service requirement, was never passed. Therefore, the failure to serve the Petition within the mandatory timeframe rendered it null and void.
Remedies
- The Petition dated 25.1.2008 is struck out because it was not served on the Applicant within the statutory 28-day period. The court emphasizes that the Petition is invalid and cannot proceed against any Respondents due to non-compliance with section 20(1)(a) of the Act.
- The Petition is consequently dismissed with costs to all the Respondents. The court holds that the Petitioner's failure to serve the Petition within the prescribed timeframe renders it incompetent, and the Respondents are entitled to cost recovery.
- The Applicant's application dated 8.2.2008 is allowed, as the Petition was not served on the Applicant within the required 28 days after publication of the election results. This relief is granted due to the Petitioner's failure to comply with the mandatory service requirements under the National Assembly and Presidential Elections Act.
Legal Principles
The court emphasized the mandatory requirement under section 20(1)(a) of the National Assembly and Presidential Elections Act that election petitions must be served within 28 days of gazettement of results. Proviso (iv) allows alternative service methods (e.g., publication in gazette and newspapers) only if due diligence was exercised within the 28-day period. Failure to comply renders the petition incompetent and subject to dismissal.
Precedent Name
- Mwai Kibaki vs Daniel Tiroitich Arap Moi
- David Murathe vs Samuel Macharia
- James Charles Nakhwanga Osogo vs Nichalos Kipchumba Mberia
- C.Devan Nair vs Yong Kuan Teik
- Ephraim Njugu Njeru vs Justin Bedan Muturi
Cited Statute
- Civil Procedure Act
- National Assembly and Presidential Elections Act
- Civil Procedure Rules
Judge Name
ISAAC LENAOLA
Passage Text
- 18. What then should this court do with a Petition which has not been served on the Applicant/3rd Respondent as is required by Law? No doubt such a Petition must be struck out. In David Wakahiu Murathe (supra) it was the holding of Pall, J.A. that: 'Once a Respondent the validity of whose election is in issue in the Petition is served out of time, the Petition against all Respondents becomes incompetent...' [citing authority]
- 14. ... the proviso was inserted to address the modes of service where personal service cannot be effected, after exercise of due diligence. The period of presentation and service is not affected by the proviso otherwise if we were to take Mr. Mbindyo's argument, the proviso would be akin to a repeal of the mandatory provision of section 20(1)(a) but clearly that interpretation is mistaken.
- 22. The Applicant beseeches this court to relieve him of the burden of defending this Petition. The law is on his side and without a measure of sympathy to the Petitioner, I must oblige. Granted, elections and not least the 2007 General Elections are time-consuming, pocket-draining and emotive. They have a way of engulfing one and all; the interest in post-election Petitions is always heightened by the great public concern it attracts but the law of this country must at all times have its way and this court will vigilantly uphold it.