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Court of AppealPartially AllowedCivil Appeal 176 of 1993

Moi v Matiba; Electoral Commission & another (Interested Parties)

Court of Appeal
22 April 1994
19,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~78 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out Matiba's 1992 presidential election petition because his wife, not Matiba himself, signed it under a power of attorney.

What this practically means

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Executive summary

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This is the Court of Appeal's reserved reasons for its unanimous decision of 15 February 1994 allowing Daniel arap Moi's appeal against the Election Court's refusal to strike out Kenneth Matiba's presidential election petition. The petition, challenging Moi's election in the December 1992 presidential election, had been signed by Matiba's wife under a general power of attorney rather than by Matiba himself. The Election Court (Torgbor, Sheikh-Amin and Couldrey JJ) had dismissed the preliminary objection and striking-out application, holding that the attorney's signature satisfied rule 4(3) of the National Assembly Elections (Election Petition) Rules 1993. The Court of Appeal reversed. All three judges held that the words 'shall be signed by all the petitioners' are mandatory: a donee of a power of attorney is a mere agent, and where a statute requires signature by a party, the common law rule permitting signature by an agent is excluded. The Election Court erred by resorting to equity, estoppel, agency law and extraneous matters, including the Electoral Commission's acceptance of the nomination signature, which was held to have no judicial or persuasive value. The Electoral Commission, having taken no step on the Election Court decision, was denied locus standi on the appeal. The appeal was allowed with costs, the Election Court's orders were set aside, and the petition was struck out with costs as incompetent ab initio. The judgment binds lower courts on the mandatory character of statutory signature requirements in election petitions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether rule 4(3) of the National Assembly Elections (Election Petition) Rules 1993, requiring that the petition 'shall be signed by all the petitioners', is mandatory or directory
  2. 2.Whether an election petition may validly be signed by a donee of a power of attorney acting for the petitioner
  3. 3.Whether the Election Court correctly interpreted rule 4(3) in light of the common law, the law of agency, equity and the authorities cited
  4. 4.Whether the Electoral Commission, having taken no step on the Election Court decision, had locus standi to be heard on the appeal

Key legal issues

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01

Mandatory nature of rule 4(3) signature requirement

Holding

The words 'and shall be signed by all the petitioners' are mandatory; non-compliance is fatal and the petition is incompetent ab initio.

Reasoning

The court applied the ordinary meaning of the words, holding that 'shall' imports command without needing the addition of 'personally'. It relied on Toms v Cuming, Hyde v Johnson, Orpen v Celliers and Re Prince Blucher to show that where a statute requires signature by a party, the legislature knew how to provide for signature by an agent and its omission means personal signature is required. Subsidiary legislation has the force of an Act under section 3 of the Interpretation and General Provisions Act.

p. 28
02

Status of a donee of a power of attorney

Holding

A donee of a power of attorney is a mere agent, no more and no less; a written power of attorney adds only evidential value and confers no special capacity or status.

Reasoning

Drawing on Halsbury's Laws of England and the Encyclopedia of Forms and Precedents, the court held that agency created by power of attorney differs from other agency only in the manner of appointment. Since the signature requirement was statutory and personal, the attorney's signature could not satisfy rule 4(3), and the Election Court erred in treating the power of attorney as the decisive basis of its decision.

p. 5
03

Errors of the Election Court

Holding

The Election Court misdirected itself by resorting to equity, the law of agency, extraneous matters about nomination papers, and the Electoral Commission's acceptance of the attorney's signature on the nomination form.

Reasoning

The court held the Election Court disregarded the general principles of statutory interpretation by adding the word 'personally' to the rule and by importing equity and estoppel principles inapplicable to the facts. The Electoral Commission's acceptance of the nomination signature was not a judicial decision and had no persuasive value; the appellant was not party to it.

p. 10
04

Locus standi of the Electoral Commission on appeal

Holding

The Electoral Commission, having neither appealed nor filed a notice of cross-appeal nor taken any step on the decision, had no locus standi to be heard on the appeal.

Reasoning

The Attorney General's participation was statutory under section 34 of Cap 7 and rule 26 of the Rules. The Commission could point to no legal provision entitling it to be heard; its satisfaction with the dismissal of its motion meant it could not participate as an interested party on the appeal.

p. 2

Legal principles established

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  • Rule 4(3) of the National Assembly Elections (Election Petition) Rules 1993 is mandatory: an election petition must be signed by the petitioner personally and cannot be signed by an agent or donee of a power of attorney
  • Where a statutory provision requires a signature, the common law rule that an agent may sign for a principal is excluded unless the statute expressly permits signature by an agent
  • There can be no estoppel, equitable or otherwise, against a statute
  • A petitioner who cannot write may still comply by affixing a mark or symbol as an adopted signature; inability to sign is not a ground for signature by an attorney

Court orders

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  1. 1.Appeal allowed with costs to the appellant
  2. 2.Orders of the Election Court dismissing the preliminary objection and notice to strike out set aside
  3. 3.Election petition struck out with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Delivered separate reasons holding that rule 4(3) of the Election Petition Rules 1993 is mandatory: an election petition must be signed by the petitioner personally and not by an agent or donee of a power of attorney; the Election Court misdirected itself by resorting to equity, agency law and extraneous matters, and ought to have struck out the petition.

I hold that the petitioner having failed to sign the petition himself as provided by rule 4(3) of the National Assembly and Presidential Elections (Election Petition) Rules 1993) there was no valid petition before the Court and the Election Court ought to have struck it out with costs.p. 11
majority

Wrote the judgment

Delivered separate reasons analysing the authorities (Jahazi, Walji, De Souza, Orpen, Re Prince Blucher, Toms v Cuming, Hyde v Johnson) and concluding that the words 'shall be signed by all the petitioners' are mandatory, that a donee of a power of attorney is a mere agent, that the Election Court's approach was erroneous, and that the petition was incompetent ab initio.

Having now considered and analysed the whole set-up of the rules and the words used in the relevant rules I have no hesitation in coming to the conclusion that the words used in rule 4(3) of the rules are mandatory and that the sub-rule does not allow the petition to be signed by anyone else except by the petitioner himself.p. 28
majority

Wrote the judgment

Delivered separate reasons agreeing the appeal should be allowed with costs: the word 'shall' in rule 4(3) is mandatory without needing the addition of 'personally'; common law is excluded where the statutory rule is clear; and allegations against the incumbent President could not be litigated in the petition.

The Court was clearly wrong because the words "shall be signed by the petitioners" are mandatory and allowed no other mode of signature.p. 29
On appeal from
High Court of Kenya (Election Court)
Presidential Election Petition [1992] eKLR
Jurisdiction invoked
Appeal to the Court of Appeal from the Election Court's decision, following leave granted under the Court of Appeal Rules; formal decision delivered under rule 32(5) of the Court of Appeal Rules

Relief refused

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Electoral Commission's participation in the appeal

Having failed to take any step on the Election Court decision, the Commission had no locus standi and its counsel's participation was not allowed

p. 2

Costs

Appeal allowed with costs to the appellant; the Election Court's orders set aside and the election petition struck out with costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court on the conclusion of the hearing arrived at the unanimous decision which was delivered under rule 32(5) of the Rules of this Court allowing the appeal with costs and setting aside the orders made by the Election Court and substituting them with an order striking out the election Petition.
p. 11Final orders - appeal allowed, Election Court orders set aside, petition struck out
This appeal was allowed on 15th February, 1994, under rule 32(5) of the Court of Appeal rules and the petition was struck out with costs as then ordered.
p. 28Disposition recorded in Cockar JA's reasons
The petition was incompetent ab-inito. It was still born.
p. 28Effect of non-compliance with rule 4(3)
The provision contained in rule 4(3) that a petitioner personally sign the petition was mandatory and not merely discretionary and the petitioner's non-compliance with it was fatal.
p. 3Jahazi holding approved on mandatoriness
Constitution is not a one-way trac of rights only.
p. 27Obligations accompany constitutional rights
where the words of a statute read: "…….shall be signed by the person objecting ……" then the natural meaning of these words is that there shall be a personal signature.
p. 17Natural meaning of statutory signature requirements

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moi v Matiba; Electoral Commission & another (Interested Parties)", Case Analysis (1994). Civil Appeal 176 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.