Justus Mungumbu Omiti v Walter Enock Nyambati Osebe, Lawrence Ole Sempele & The Electoral Commission of Kenya

The court held the overwritten alteration of the affidavit a nullity, but found the original typewritten date of 11th January was correct, so the affidavit as originally drawn was unimpeachable. The motion's omission of dates caused no prejudice since the appellant's own advocate swore the petition was filed on 11th January. Section 23(1)(d) required election petitions to be decided without undue regard to technicalities.

The statute governing election petitions makes no provision for when an affidavit of service must be filed; unlike civil summonses there is no default judgment mechanism requiring a filed return of service. Leave was granted to file the replying affidavit incorporating the affidavit of service, and a cross-examination order was made. The trial judge wrongly declared it expunged when it remained on record, and failed to examine the very evidence bearing on the disputed fact of service.

The trial judge found no due diligence solely because no affidavit of service predated the advertisement, but he had wrongly excluded the affidavit that would have established those facts. The Court of Appeal, evaluating the affidavit afresh, found multiple documented attempts at personal service (telephone calls, Parliament, residence, Safari Park Hotel) thwarted by security and post-election circumstances, meeting the standard of diligence reasonably and ordinarily expected.

Githinji, JA reaffirmed his earlier construction in Mwakwere Chirau Ali that no statutory provision requires personal service of election petitions and that where a plain statute conflicts with previous judge-made law, the statute prevails. The admitted Gazette Notice No. 449 of 25th January 2008 constituted service as stipulated by Rule 14(2), independently of the due diligence question.