Boni Khalwale v Bernard Shinali Masaka & 2 others [2008] KECA 43 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that evading service of an election petition backfires: you can be served anywhere, even at an airport after hours.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Respondent presented and served the election petition within the twenty-eight days prescribed by section 20(1)(a) of the National Assembly and Presidential Elections Act
- 2.Whether the Appellant was personally served with the petition and notice of presentation on 26th January 2008 at Jomo Kenyatta International Airport
- 3.Whether service effected at about 7.40 p.m., outside ordinary court hours, was valid where the person to be served was evading service
- 4.Whether Rule 10 of the National Assembly Elections (Election Petition) Rules makes it mandatory for an elected person to leave an address for service with the Registrar
- 5.Whether the petition ought to be struck out for want of proper service
Key legal issues
#Personal service of an election petition within the statutory 28-day period
The petition was duly presented and personally served within 28 days of Gazette publication; the Appellant was served at JKIA at about 7.40 p.m. on 26th January 2008 after evading service at Kisumu Airport.
The court re-evaluated the affidavit evidence as a first appeal. The process servers' affidavits contained specific, consistent detail; no improper motive was attributed to them; the Appellant's own affidavit conceded Mbeja's visit to his home and failed to explain the process servers' alleged fabrication. The truth lay with the 1st Respondent and his three witnesses.
Time of day for service of election petitions
Service after 5.00 p.m. is permissible where the circumstances are not normal, such as when the person to be served is evading service; Order XLIX rule 8(2) uses 'shall normally', not an absolute requirement.
The court distinguished Ntoitha M'Mithiaru, noting Githinji JA's view on service hours was not shared by the other two judges on that bench. Since the Appellant would have been served at Kisumu before 5.00 p.m. had he accepted service, his evasion rendered the circumstances abnormal, entitling the petitioner to pursue and serve him in Nairobi at whatever time he was cornered.
Whether an elected person must leave an address for service with the Registrar under Rule 10
Rule 10 is permissive, not mandatory; leaving an address with the Registrar remains optional for elected Members of Parliament.
The rule uses the term 'MAY'; had the rule-maker intended compulsion it would have used 'SHALL' or 'MUST'. This was the position taken in Kibaki v Moi and nothing had changed to warrant departing from it.
Publication of notice of presentation under the proviso to section 20(1)(a)
Publication in the Gazette, one English daily and one Kiswahili daily is a residual mode available only after due diligence to effect personal service fails; it was unnecessary here because personal service was proved.
The proviso added by the Statute Law (Miscellaneous Amendments) Act 2007 permits resort to publication only 'after due diligence'. What amounts to due diligence is for the election court to interpret in the circumstances of each petition. Since the court found personal service occurred within time, the publication complaint fell away.
Legal principles established
#- Rule 10 of the National Assembly Elections (Election Petition) Rules does not make it mandatory for an elected person to leave an address for service with the Registrar; it remains optional.
- A litigant who deliberately evades service of court process cannot later use the courts to strike out an otherwise valid petition on the ground of non-service; service effected at whatever time the person is cornered is valid.
- On a first appeal against a ruling decided on affidavit evidence, the appellate court is in as good a position as the trial judge to re-assess and re-evaluate the material and come to its own conclusions.
Court orders
#- 1.The appeal be and is hereby dismissed with the costs thereof to be paid by the Appellant to the 1st Respondent only
- 2.The 2nd & 3rd Respondents shall bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C. Election Petition No. 2 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court's ruling striking-out application in an election petition
Relief refused
#Striking out of the election petition for alleged non-service and invalid publication of notice of presentation
The court found the Appellant was personally served at Jomo Kenyatta International Airport and had deliberately evaded service at Kisumu Airport
Costs
Appeal dismissed with costs to the Appellant payable to the 1st Respondent only; the 2nd and 3rd Respondents to bear their own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Our final order in the matter shall be that this appeal be and is hereby dismissed with the costs thereof to be paid by the Appellant to the 1st Respondent only. The 2nd & 3rd Respondents shall bear their own costs of the appeal as they chose to side with the Appellant. We so order.
Members of Parliament must understand that the courts will not allow them to invoke dishonourable methods or subterfuge to evade service of court processes and having successfully done so, think that they will be allowed to use the courts whose processes they have evaded to strike out otherwise valid election petitions against them.
But it would be wholly wrong to say that the rule makes it mandatory that the elected person MUST or SHALL leave with the Registrar the address at which documents intended for him are to be left.
We ourselves are just in as good a position as the learned Judge was to re-assess and re-evaluate the material which the parties chose to place before the Judge and come to our own conclusions on that material.
Issues in the judgment
#The Gazette Notice for the election result is inconsistently identified in the judgment as Gazette Notice No. 103 and as Gazette Notice No. 12615 in Vol. CIX-103.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Patrick Mwangi Ndamburi & another (suing on their behalf and on behalf of the Members of Green Valley Court Welfare Group) v Registered Trustees Parklands Baptist Church & another [2018] KEELC 4546 (KLR)[2018] KEELC 4546 (KLR)16 Feb 2018applied
- Gaichanjiru Estate Limited v Francis Nganga Ndungu,David Gakura Thiari, Samuel Mwangi Mburu & Harrison Nuthu Waweru [2018] KEELC 4447 (KLR)[2018] KEELC 4447 (KLR)16 Feb 2018applied
Cite this brief
#Cite this brief
Caselaw, "Boni Khalwale v Bernard Shinali Masaka & 2 others [2008] KECA 43 (KLR)", Case Analysis (2008). Civil Appeal No. 156 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/43/eng@2008-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.