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

petition on the similar ground that it had not been signed by the petitioner in accordance with the provisions of rule 4 of the National Assembly Elections (Election Petition) Rules 1993. 3. Both applications were never consolidated but were heard together and the decision delivered by the Election Court presided over by Torgbor, Sheikh-Amin and Couldrey JJ The Court dismissed the applications with costs. The First respondent led a notice of appeal and applied for the proceedings in order to le the intended appeal. The second respondent did nothing on the decision. 4. The respondent (petitioner) sought to strike out the notice of appeal in his Civil Application No Nai 241 of 1993. That application was heard by Cockar, Muli and Omolo JJ A who dismissed it and held that in this case an appeal lies to this Court. That ruling was followed by an application for leave to appeal. Leave to appal was granted by Pall J whose leave led to the ling of this appeal. The order of Pall J was the subject of Civil Appeal No 179 of 1993 which appeal was heard prior to this appeal and separate judgment dismissing it delivered. 5. At the hearing of this appeal, there were two other interested parties who appeared by advocates and who wished to be heard. These are counsel for the Electoral Commission, and the Attorney General (both named as rst and second interested party). The participation of the Attorney General in the High Court was statutory as provided by section 34 of the National Assembly and Presidential Election Act (Cap 7) and under rule 26 of the National Assembly Elections (Election Petition) Rules 1993. By virtue of statutory provision counsel was entitled to participate in the appeal. The position of the Electoral Commission was precarious because the Commission had not appealed or led a notice of cross appeal either for arming the decision or for reversing it upon which it could be heard. Counsels for the Commission, in his submission submitted that the Commission was served with the notice of appeal and the record of appeal and that was the reason for his attendance. He could not submit on any specic section of the law that would have entitled the Commission to be heard. Having failed to take nay step on the decision of the Election Court, the view of the Court was that he Electoral Commission was satised with the dismissal of its motion. For that matter it had no locus standi in the appeal and counsel’s participation was not allowed. 6. This appeal was heard and a formal decision of the Court was delivered on 15th February 1994 under the provisions of rule 32(5) of the Rules of this Court allowing the appeal and reserving reasons to be delivered later. I now proceed to give my reasons. 7. The real issue in this appeal is the interpretation of rule 4(3) of the national Assembly Elections (Election Petition) Rules 1993. These rules were made under the National Assembly and Presidential Election Act (Cap 7) and were published on 29th January, 1993 as Legislative Supplement No 5 under Legal Notice No 14. In the Interpretation and General Provisions Act, (Cap 2) Subsidiary legislation is dened as: “ Subsidiary legislation” means any legislative provision (including a transfer or delegation of powers or duties) made in exercise of a power on that behalf conferred by a written law, by way of by-law, notice, order, proclamation, regulation, rule of Court or other instrument.” and “ Written law means:a. an Act of Parliament for the time being in force; b. an applied law; or https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 2

page 2 of 31

c. any subsidiary legislation for the time being in force”. 8. Rule 4 sets out the contents and form of the election petition. 9. The provision of the rule that is relied upon in striking out the petition, is rule 4 (3) which provides: “ (3) 10. The petition shall conclude with a prayer as, for instance, that some specied person should be declared duly elected or that the election should be declared void, and shall be signed by all the petitioners.” (underlining is mine)”. Under sec 3 of the Interpretation and General Provisions Act (Cap 2) these rules have force as an Act of Parliament and will be construed as such. The petition was not signed by the petitioner but was signed by Edith Wanjiru Matiba under a power of attorney as under Sgd E W Matiba (PA) Kenneth Stanley Njindo Matiba Petitioner 11. Attached to the petition was a Photostat copy of the power of attorney executed by the petitioner under a seal dated 22nd December, 1988. The respondent’s notice of preliminary objection implied that the petitioner could either sign or thumbprint the petition himself. 12. Mr. Inmadar submitted that the petition could not be signed by anybody else other that the petitioner himself and relied most heavily on the decision of the High Court in Mohammed Mwinyimtwana Jahazi v Francis Cherogony and Shari Nassir Taib [1990] LWR 117. This was a decision in an Election Petition which was objected for not having been signed by the petitioner Mohammed Mwinyimtwana Jahazi but was singed by Adembesa of Adembesa and Co Advocates for the petitioner. The Election Court held: “ 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.” 13. This holding determined that an election petition cannot be signed by an agent. An advocate is an agent appointed by his principal to act for him. In the election petition rules, an advocate will be appointed by the petitioner under rule 9 of the National Assembly Elections (Election Petition Rules 1993 to act after the election petition has been led but not before. It is only the respondent who may, after he is elected, appoint an advocate to act for him under rule 10. The documents which may be signed by an agent after the ling of the election petition are specied in the rules. 14. In the same decision (Jahazi’s) when the Election Court was referred to execution by a holder of a power of attorney, the Court expressed its view that: “ In our view the cases of powers of attorney are clearly distinguishable from the instant matter. What an attorney can or cannot do for his principal will obviously depend on the extent and scope of the power of attorney and the law governing powers of attorney. The petition not having been signed by the holder of a power of attorney, it is not necessary for us to consider whether or not an attorney can sign an election petition.” https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 3

page 3 of 31

15. Counsel for the respondent argued that the petitioner can sign the petition under the common law through an agent appointed by him and that all what has been done by an agent is deemed to have been done by the principle who assumes responsibility for those acts done in his name. Mr Kariuki urged the Court to apply common law under sec 3 of the Judicature Act Cap 8 in construing the signature under a power of attorney. He further contended that the object of the National Assembly and Presidential Elections Act (Cap 7) is to facilitate the Constitutional right to democracy. He further submitted that rule must be construed in the manner which will give eect to the intention of the Parliament and to allow the construction requiring personal signature, will not be contrary to the requirement of the common law. He referred us to Lall v JeypeeInvestment Ltd [1972] E A 512 which is a case of Landlord and Tenant of which the Act was for the protection of the tenant. On the interpretation of the notice of termination under the Act it was held. “ Every statute must be interpreted on the basis of its own language since words derive their colour and content from the context and the object of the statute is a paramount consideration” and in Godman v J Eban Ltd [1954] 1 AER 763 where it was provided in the Solicitors Act 1932 Chapter 37 section 65 (2) 1) that: “ The bill must be signed by the solicitor, or, if the costs are due to the rm one of the partners of the rm, either in his own name or in the name of the rm, or be enclosed in, or accompanied by, a letter which is so signed and refers to the bill” 16. The signing of the solicitor’s bill by solicitor is not under the common law but under the provision of the particular statute. The defendant in that case objected to the bill, because it was not signed but stamped with a rubber stamp of the rm, the majority of the Court held: “ the signature on the letter having been shown to have been placed on it by means of the stamp by the plainti himself, the letter must be taken to be signed by him within the meaning of Sec 65 (2) (1) of the Act of 1932.; and Dennnig L J (expressing no view) said: “ The name of the rm being the plainti’s professional name, his signature in the name of the rm was a compliance with the provisions of section 65(2) (1)”. 17. Mr Kariuki relied heavily in the Election Court and before this Court that rule 4 (3) should be construed and be given construction under the common law. He submitted that Jahazi’s case was not correctly decided. He urged us that we should not follow it as it did not consider the eect of a holder of a power of attorney. No doubt the Election Court was persuaded by the submission on the common law rule “quifacit per alium perse” and disregarded all other authorities referred to in Jahazi’s case and repeated before the Court. The Election Court interpreted the section in a manner that since it did not include “personally” the section was not mandatory but permissive that the petition could be signed by a holder of a power of attorney. The Election Court went further and held that the signature by the older of power of attorney is what the petitioner oers as his usual signature in view of his inability to write, and being in lawful form it is the signature that on the particular facts and in the context of the application fullled the requirements of Rules 4 (3) and the acceptance of which meets the justice of this case. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 4

page 4 of 31

18. Mr Inamdar who appeared for the rst respondent challenged his holding of the Election Court and maintained that Jahazi’s decision is correct in law that the petition must be signed by the petitioner or petitioners if more than one if not, even if it is signed by anybody else with consent and authority of the petitioner the petition is invalid. This is why the decision in Jahazi’s case is important. He further submitted that the position regarding a holder of a power of attorney is no more than a mere agent. The only dierence is the manner of appointment which is by a formal document as a proof of agency. The law in Kenya is that an agent can be appointed in writing not under seal. Reference was made to Volume 31 of Encyclopedia Forms and Precedents 5th Edition at pages 495 – 498 as follows “ Source of the law. A power of attorney is a formal arrangement by which one person (the donor) gives another person (the donee) authority to act on his behalf and in his name. It is a type of agency, and the law relating to power of attorney forms part of the generally law of agency.” 19. Further provision is contained in Halsbury”s Laws of England 4th Edition Volume 1 para 715 under Formation of Agency: “ Method of creation. The relation of agency is created by the express or implied agreement of principal and agent, or by ratication by the principal of the agent’s acts done on his behalf. Express agency is crated where the principal or some person authorized by him, express appoints the agent, either by deed, by writing under hand or orally.” 20. These provisions show that the donee of a power of attorney is no more or no less but an agent. The only dierence is in the manner of appointment but there is no dierence in capacity or status between an agent appointed under a power of attorney and an agent appointed in writing or by a word of mouth or by conduct or by ratication. 21. Mr Inmandar also referred to Vol Halsbury’s Laws of England 4th Edition page 420 to 447 Para 703 provides: “ General rule. It may be stated as a general proposition that whatever a person has power to do himself he may do by a means of an agent. The converse proposition similarly holds good that what a person cannot do himself he cannot do by means of an agent. There are, however, tow exceptions to the general rule that a person may do by means of an agent whatever he has a power to do himself, and these are: 22. 1. where the transaction is required by statute to be evidenced by the signature of the principal himself, 2. where the competency to do the act arises by virtue of the holding of some public oce or by virtue of some powers, authority, or duty of a personal nature and requiring skill or discretion for its exercise, or where a statute imposes on a person a duty which he is not free to delegate. In support of the rst exceptions, Mr Inamdar referred to several authorities, which were also referred in Jahazi’s case. In Hyde and Another v Johnson 1836 2 Bine, No 776, the plainti in order to recover a debt barred by the Statute of Limitation, oered in evidence at the trial before the under sheri, a https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 5

page 5 of 31

letter written by the defendant’s wife in her husbands name, at his request, oering to pay the debt by installments and sent by him to the plainti. Tindal, C J in their judgment stated that “ Some inconveniences have been pressed in the course of argument upon our attention, in cases where a total inability of parties to sign may exist, but the nature of the signature which is necessary to comply with the requisite of the statute, is such, as to make it almost impossible to suppose a case in which a party could not make such a signature as would satisfy the statute.” 23. I was held in this case that: “ an acknowledgment signed by the agent of the debtor, will not retrieve a debt barred by the Statute of Limitation; it must be signed by the debtor himself.” 24. The case of Toms v Cunning [1846] 7 Man & G88 was an objection to retain the name of Samuel Augel in the list of voters. The notice of objection had been signed by the objector himself and a copy thereof, had been signed with the name of the objector one William Benard Hannarford, by the direction of the objector, and in his presence, and both were addressed to Augel at his place of abode, as described in the list. The notice and copy were by him taken to the postmaster at Totnes – and compared and stamped by the postmaster. The notice was retained at the post oce to be forwarded according t the Actt, and the copy was returned to the objector; who produced the same in Court. The notice would, in the ordinary cause of post, have been delivered at Augel’s place of abode as described in the list, on or before……..It was objected on the part of Angel, that the production of such stamped copy was not the production of a duplicate notice, as required by the 6 & 7 Viet c 18, s 100. The name of the voter was retained without proof of his qualication. 25. I was held on appeal: “ A notice of objection, and also the duplicate notice where notice of objection is sent by the post, must be personally signed by the objector.” 26. In his judgment, Tinal, C J stated; “ The rst question is whether the original notice of objection should be signed by the objector himself. …….”Every person, so objecting, shall give, or cause to be left at the place of abode of the person objected to, a notice according to the form numbered (ii)…..and every notice of objection shall be signed by the person objecting……. 27. The natural meaning of these words is that there shall be a personal signature; Maule J in the same matter stated: “ I am of the same view. I think that the signature should be that of the party objecting; and that this is deducible both from the words of the seventeenth section and from the form given in the schedule there referred to. The purport of the section is, that the party objected to may have some means of knowing that the objecting party did really object. Otherwise persons might be called upon to come up and defend their votes and, after all, might nd out that there was no real objector, but that the name of the supposed objector had been put to the notice without his authority.’ 28. Cresswell and Eble JJ came up with the same view. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 6

page 6 of 31

29. The other authority was a South African case Orpen v Celliers [1903] 20 S C 261. The facts of the case are that a petition was lodged on 22nd May on behalf of Redmond Newenham Morris Orpen challenging the election and return of Petrus Stephanus Celliers as a member for the House of Assembly and applying for certain other measures to be taken in connection with the challenges. In the petition it was stated that “your petitioner has telegraphed to his attorney’s in Cape Town, requesting them to lodge a petition on his behalf….a has at the same time advised them that the usual warrant authorizing proceedings in the Supreme Court has been posted. The petition was signed as follows: Van Zill and Buissinoo Attorney for R N M Orpen C MG the petitioner. The petitioner had executed a power of attorney on 19th May. 30. On application for inspection of documents in the petition, it was opposed on the ground that the petition had not been duly drawn up and led in accordance with the provisions of 4th section of Act 9 of 1883 and it is consequently invalid and the applicant is not entitled to proceed further with it. The section in the Act provides that:“ (4) 31. With respect to the personalities of an election petition under the Act, the following provisions shall apply, (1) The petition shall be signed by the petitioner or all of the petitioners, if more than one.” Maasdorp J in his judgment observed that it seemed that where a statute confers a right, privilege or immunity, the regulations or forms and conditions, which it prescribes are imperative in the sense that the non-observance of them is fatal. He further stated: It must be born in mind that the presentation of petitions to the Court is of common occurrence, and if the Legislature had no special purpose in view, they might have allowed these petitions to be presented in the ordinary manner, in which case the signature of a duly appointed attorney would have been sucient. It is certain that the signature of the petitioner himself removes all diculties and doubts which might arise as to the nature and validity of the power of attorney where an attorney might arise as to the nature and validity of the power of attorney where an attorney might have acted. ……The want of the petitioner’s signatures for the petition presented by the applicant in this case and he cannot proceed further with it. 32. Kotze, J was of the same view and held that: “ By section 4 of Act 9 of 1883 it is provided that where an election petition is presented, it shall be signed by the petitioner, or all the petitioners if more than one. These words are, I think peremptory, and do not allow of a petition being signed by an agent on behalf of the petitioner. ………….The Legislature has chosen to say that the petition shall be signed by the petitioners, and this is equivalent to providing that it must be so singed. We cannot depart from the clear and exact language of the Act…. I am therefore of opinion that the application should be refused with costs.” 33. The above two authorities cover the second exception. The matter in dispute in this appeal where the petition was signed by an agent holding a power of attorney, the petition was held invalid. The second exception to the general rule imposes a duty of personal nature that cannot be delegated to a holder https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 7

page 7 of 31

of a power of attorney to sign the petition. The petition contains allegations of serous nature and defamatory statement which only the petitioner should remove any doubt that may be expressed on them by the petitioners signature as having made them himself and nobody else. To stress this point further these authorities impose a duty on the objector himself to signify his objection by his personal signature and not by a signature of an agent. The knowledge of the matters objected to is of personal nature. The matters contained in the petition challenging the validity of the election of the appellant are of personal nature and it is only the petitioner who can vouch for their truth and it is personal duty on the petitioner to prove them. 34. The interpretation of the words in the statute has to be construed strictly to give eect to the intention of the Act. In the case of Re-Prince Blucher ex-Pare Debtor, [1931] 2 Ch 70 the words “signed by him” was further considered. The head note reads: “ By S16 subs 1 of the Bankruptcy act, 1914, where a debtor intends to make a proposal for a scheme of composition in satisfaction of his debts, he shall within the time thereby limited lodge with the Ocial Receiver “a proposal in writing signed by him” embodying the terms of the scheme of composition which he is desirous of submitting for the consideration of his creditors. At a meeting of creditors of a debtor against whom a receiving order had been made a proposal for a scheme of composition was submitted on behalf of the debtor. The proposal was not signed by the debtor himself but by this solicitors. On behalf of the debtor a certicate by an eminent physician was exhibited to an adavit, in which it was stated that the debtor was “still so seriously ill as to make it quite impossible for him to discuss any matters of business, and that any attempt to explain to him business details or proceedings would have a serious and possibly a fatal eect upon him. Held; arming the decision of the registrar, that no proposal for a composition had been lodged by the debtor within S 16 sub. S 1 of the Act; that the words “singed by him” were explicit and that there was no ground for altering the words of the statute or giving to the statute a judicial interpretation which would in eect be an amendment or alteration of its plain terms.” 35. The Court of Appeal considered the sickness of the debtor but conned itself to the words of the statute “signed by him”. They also considered the Statute of Frauds which expressly refers to signature by an agent and that a clause which contain no reference to an agent was to be held to require personal signature. In the Statute of Fraud regarding the sale of land, the words of the section are “and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.” This imports a signature by an agent. Considering this case, handicap is not an element to be considered for failure to sign the petition by the petitioner himself. The petition starts with the words in paragraph 1, “That’s your petitioner……..and concludes Petitioner.” It is the signature of the petitioner to be axed therein and not of an agent. 36. Mr Inamdar further dealt with the exception that a party could not do an act of personal nature or delegate his powers to some one else. In his submission he relied on Clauss and Another v Pir [1987] 2 AER 752. This decision was based on Power of Attorney Act 1971 which Act is not applicable there but the principle in that Act is applicable. The case concerns two claimants to an estate of the deceased to be entitled to a grant of letters of administration. The master ordered the ling of further documents https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 8

page 8 of 31

to be veried by an adavit. The defendant’s adavit was sworn by his wife, on who he had conferred a statutory power of attorney. The plainti applied for judgment: “ Held: A party could not do by an attorney an act which he was only competent to do by virtue of some duty of a personal nature requiring skill or discretion for the exercise….. The verication of the relevant documents by adavit could not be delegated by the defendant since it was a personal duty which he alone could perform because of the personal knowledge required. It followed therefore that the defendant had failed to comply with the order.” 37. The adavit commences with “I so and so make oath……and end with ‘the facts deponed herein are true to the best of my knowledge and belief…..’ These facts are taken to be from his own knowledge which knowledge is of personal nature requiring skill and discretion and cannot be delegated to someone else. 38. The Election Court in determining the construction of rule 4(3) whether it was mandatory for the petitioner to sign the petition personally relied on the doctrine of equity. In Jahazi’s case, the judges commented on equity as follows: “ The requirement that a petition be signed by a petitioner is not a formality. Equity demands that a petitioner assumes responsibility for his petition by signing it. 39. Mr. Inamdar complains that neither of the counsel submitted on the doctrine of equity before the election court nor did the court invite them to do so. The court stated: “ Now the phrase “not a formality” is unfortunate for telling us nothing: and couched as it is in the negative, it is unfortunate and explains nothing about a rule concerned with the content and form of petition. Rule 4 as a whole deals with the form and content of a petition and sub-rule (3) itself in requiring a prayer and signature to the petitioner is permissive, as to the form of the prayer making it all the more necessary to justify the assumption or construction that the whole sub-rule is mandatory. Yet in asserting the strictness of the sub-rule the Court turned to Equity whose rules are not inexible. As we pointed out in….. on inequitable conduct ‘recent authorities have supported a much wider jurisdiction to interfere in cases where the assertion of strict legal rights is found by the Court to be unconscionable (Snells 29th Ed. P.569). And if the assumption or responsibility for a petition be a true basis for holding rule 4 (3) mandatory then there ought not be any doubt that by his attorney’s signature on the petition the petitioner thereby assumed responsibility for his petition.” 40. Mr Inamdar submitted that this is a misdirection because the Election Court did not nd out the reasoning upon which the substance of the comment was based on. Jahazi’s case used equity as a policy decision that a petitioner shall sign the petition. It is a yardstick based on policy. Election Court, relied on Snell’s on equitable conduct without nding out what was the unconscionable conduct. The passage appears in the passage dealing with the doctrine of estoppel on commercial transaction based in a situation where representation were made expressly or by conduct and represented and representor were acting under a common mistake of their respective right and after realizing, the position try to resile from that position and were estopped. The doctrine of estoppel is found in Snells Equity 29th Edition page 569 section 2-2 inequitable conduct. Also discussed in Amalgamated Investment & Property Co. Ltd. (in liquidation v Texas Commerce International Bank Ltd. (1981) AER. 923 at p936 letter b-c; and Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd, and Old Campbell Ltd Liverpool Victoria Trustees Ltd. (1981) 1 A.E.R 897 at page 911 Letter D-A. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 9

page 9 of 31

41. No such situation appertain in this case and there can never be estoppel equitable or otherwise against statute as in J K Chatrath and Another v Shah Cedar Mart (1967) E.A. 93 Duus JA at page 97 Letters F states: “ The doctrine that there can be no estoppel against a statute simply means that n estoppel cannot render valid something that the law makes invalid. So that if a statute declares a transaction to be invalid or expressly declares that something should not be done then the doctrine of estoppel cannot be used to override the specic directions of the law.” 42. The Election Court knew that there can never be an estoppel against the statute but in order to support its decision took into consideration extraneous matters. Matiba’s nomination papers were allegedly signed by Mrs. Matiba. There was no evidence before the Court to that eect and there were no evidence to show that the appellant was a party to the signing of Matiba’s nomination papers or even knew anything about them. To invoke equity into this conduct is entirely misdirection. If there was such evidence it could have been used against the second respondent but certainly could not be used against the appellant. 43. Having gone through all these authorities referred to us on decision of the courts, it is apparent that the interpretation adopted in interpreting the phrase, “and shall be signed by all the petitioners’ is not based on common law but on statute . Where common law is applicable, it recognized the powers of agents to act for the principal including the agent acting under a power of attorney. It is undisputed fact that any act done by an agent with authority of the principal, the principal takes the responsibility. It is not so where the provisions of the statute imposes a duty on a person to act. It does not appear from the record that the Election Court adhered to the principles of interpretation of Statutes. Maxwell on Interpretation of Statutes 12th Edition Chapter gives the general principles of interpretation as 1. The most elementary rule is that words and phrases are to be given their ordinary meaning. 2. That phrases and sentences are to be construed according to the rules of grammar. 3. Nothing is to be added to or taken from statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. 44. The Election Court disregarded the general principles of interpretation in that it did not adhere to the ordinary meaning of the words of rule 493) or even follow the rules of grammer. If they did so, they could have come to the only conclusion that the phrase was mandatory and should have given proper interpretation that the petition for it to be valid should be signed by the petitioner but no other. Instead the Court added to the phrase the word “personally” so as to be mandatory. In my view this was contrary to the third general principle above and distorted the intention of the rules. 45. The words of the statute are to be construed in the light of the mischief it was intended to prevent. In enacting rule 4(3) the legislature intended that the petitioner should be personally responsible for the allegation that he wishes the court to determine and that he should be liable for the consequence. The Election Court was in a position to interpret that the holder of power of attorney, the point that was not decided by Jahazi case, could not sign the petition in the light of several authorities referred to above but instead decided in departure from this decision and rejected all of them and arrived at a dierent interpretation that the phrase was not mandatory. They even disregarded the case of Re-Prince Blucher Ex-Parte Debtor where inability to sign due do serious illness was held not a ground to allow his adavit to be sworn by his wife under a power of attorney. They followed the interpretation under the common law but not the statute. This is contrary to Maxwell on Interpretation of Statutes 12th Edition which provides that nothing is to be added to or taken form statute unless there are adequate grounds to https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 10

page 10 of 31

justify the inference. The words of the statute are to be given their ordinary meaning. The meaning is to be obtained from the four corners of the statute. Where documents are allowed to be signed by an agent on behalf of the petition, the election rules have provided for such a need. On the authorities referred to above, I, rmly believe that rule 4(3) of the National Assembly and Presidential elections (Election Petition) Rules 1993, the petition must be signed by the petitioner and no other. If the petitioner was unable to sign his name, there was nothing shown that prevented him from axing his mark or symbol which he could claim to have been axed by him as his adopted signature due to his inability to sign. Mr Kariuki asked us to interpret the rule properly so as to give eect to the Constitution. I would say that to interpret the rule correctly as I have tried to demonstrate from the authorities referred to us, is to aord the correct Constitutional rights and eects under the Constitution to the citizen. On my part 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. 46. 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. Cockar, J A Reasons for the Judgment 1. My Lords, on 15th February, 1994, the Judgment of the Court was delivered under rule 32 (5) of the Court of Appeal Rules, allowing the appeal against the Election Court’s decision rejecting the appellant’s preliminary point that the petition led by the respondent (petitioner therein) was incompetent because the same was not signed by the petitioner as required by rule 4 (3) of The National Assembly Elections (Election Petition) Rules, 1993 (hereinafter referred to as rules) made under The National Assembly and Presidential Elections Act (Cap 7) (hereafter referred to as the Act). 2. Hereunder are my reasons for the judgment .What had happened was that the respondent’s wife who was the donee of a general power of attorney dated 22nd December, 1988, granted by the respondent, had singed the petition in her capacity as the donee of the said power of attorney. A preliminary point was taken up by the appellant’s advocates through a notice in writing questioning the competency of the petition on the ground that it was not singed by the petitioner as required under rule 4 (3) of the rules. The same point was taken up through a notice of motion by the Electoral Commission, the 2nd respondent in the petition, and now herein the 1st interested party. 3. After hearing submissions made by all the learned counsel Torgbor, Sheikh Amin and Couldrey, J J, who constituted the Election Court, rejected the preliminary point after making a conclusion as follows: “ Our conclusion therefore is that, the “petition signature” which is the same as the “nomination signature” and accepted as valid by the Electoral Commission is what the petitioner oers as his usual signature in view of his inability to write, and being in lawful form it is signature that on the particular facts and in the context of this application fulls the requirements of Rule 4 (3) and the acceptance of which meets the justice of this case and we so rule.” 4. The preliminary point before the Election Court required a consideration and interpretation of the words used in rule 4 (3) of the Rules. The Election Court was particularly requested to seek assistance from rules 9, 10, 24 (1) and 26 of the rules when interpreting the meaning of the words”….. and shall be signed by the petitioners’ used in rule 4 (3). https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 11

page 11 of 31

5. Apart from citing authorities, to which I shall have occasion to refer hereafter, the appellant had relied heavily on a previous decision of the Election Court in Election petition No 30 of 1979, M M Jahazi vs F Cherogony and S N Taib (hereafter referred to as Jahazi case ). 6. The Election Court found that a. The Jahazi case had not settled the issue relating to the signing of a petition by donee of a power of attorney from the petitioner. b. The authorities cited particularly on behalf of the appellant (1st respondent therein) were of some assistance only because these involved the signature of an advocate or an agent not being an attorney and included decisions such as in Re-Prince Blucher and Jahazi. c. The decision in the authorities which involved the signature of an attorney including such as in R Wallace, Clauss and Abdullahi Walji Hirji were of great assistance although these too did not decide the particular issue. d. That the issue nally would be resolved by considering the law governing the powers of attorney and thereunder also the extent of the authority granted under a power of Attorney. e. On a consideration of No 4 above together with the fact that the signature of the petitioner made through the donee of his power of attorney on the nomination form had been accepted and declared valid by the Electoral Commission, the Election Court accepted the attorney’s signature as the lawful signature of the petitioner that complied with rule 4 (3) of the rules. 7. It is to be observed that the Election Court completely over-looked a consideration of the basic question which is the interpretation of the words used in rule 4(3) in light of the words used in rules 9, 10, 24(1) and 26 and I would add rule 28(1), of the rules. 8. At the outset I must state that in my view the Jahazi case is not of much help on the issue of the true interpretation of rule 4 (3) of the rules. Very briey what happened in that petition was that the advocates signed the petition as advocates for the petitioner. Under the provisions of rule 9 an advocate comes to be accepted as an advocate for the petitioner only if with the petition the petitioner leaves at the oce of the Registrars a notice in writing signed by him, giving the name of the advocate who he thereby authorizes to act as his advocate. So clearly prior to the ling of the petition no advocate will be accepted under the rules as a duly appointed advocate for the petitioner. The Election Court in Jahazi’s case very properly dismissed that petition as being incompetent because it was not signed by the petitioner as mandatorily required under rule 4(3) of the rules. As that petition had not been signed by the holder of a power of attorney the Election Court had found it unnecessary to consider whether or not an attorney could sign an election petition, LWR (1990) Letter D page 124. I do not , therefore , propose to go into the reasoning or ndings in Jahazi’s case except where utterly necessary such as where the Election Court has chosen make use of the same. 9. There are twelve grounds of appeal but Mr Inamdar, the leading counsel on behalf of the appellant, commenced his assault on the decision of the Election court with a criticism of the ndings by the Election Court of the Jahazi case. He continued his assault on the rejection of authorities cited by him in relation to the interpretation of words ‘signed by him” and “signed by the petitioner”, the nding by the Election Court to the eect that a donee under a power of attorney was a special and a superior kind of agent than an agent appointed otherwise, and the reliance placed on the cases of Abdallah Walji and de Souza neither of which, in Mr Inamdar’s view, had any relevancy to the subject matter in issue, and the extraneous matters which the Election Court introduced and on which it partly based its decision. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 12

page 12 of 31

10. I will start with the authorities which in view of the Election Court were of great assistance in the consideration of the application before it to strike out the petition. This is what the Election Court said:“ On the issue before us we think that the decision in Abdalla WaljiHirji v Khanji Bhimji and Co [1919 – 1921] Vol VIII KLR 206 (Court of Appeal for Eastern Africa) and Hortensia Felecia De Souza v John Sebestian De Souza 1938 Vol 5 EALR No 22 were perhaps more pointed (pertinent) than their quick dispatch in Jahazi suggested, so that while Mr Kariuki gave them no more than a cursory mention Mr Inamdar asked us to reject them because they were rejected in Jahazi for being concerned with the application of Civil Procedure Rules with no relevance to election petitions. Before considering the correctness or otherwise the reasoning behind their rejection we must rst look at these decisions.” 11. The facts in the case of Abdallah Walji Hirji v Dhanji Bhimji & Co. [1919-21] KLR. 206 (Court of Appeal for Eastern Africa) relied on by Mr Kariuki both before the Election Court and before us are that the appellant (plainti) therein, a resident of Mombasa, instructed an agent through a power of attorney to bring a mortgage suit and to engage an advocate for the purpose. The attorney duly instructed an advocate at Nairobi to do that and signed a “wakalat nama” to that eect. The plaint, drawn up by the advocate, also was singed by the attorney for the purpose of verication. It will be noted that neither the plaint nor the “wakalat nama”, both of which were led together, was signed by the appellant therein (plainti). On appeals following the up-holding by the judge (Barch C J) of the objection taken by the respondent (defendant) therein that both should have been signed by the plainti because he was a resident within the jurisdiction of the court and not by the attorney, the Court of Appeal unanimously reversed the judgment. 12. The facts in De Souza’s case were that the petitioner through her attorney, an advocate whom she had instructed to act for her, on 4th May, 1937, presented a petition for judicial separation and alimony. The attorney on 28th April, 1937, had been given leave by a judge to present and sign the petition subject to the usual adavit of verication being sworn by the petitioner. The power of attorney was executed at Bombay and was not stamped in Kenya until 24th July, 1937. The petition was dismissed because of an omission to stamp the power of attorney prior to the presentation of the petition which omission the Court said had rendered the proceedings purported to be instituted under it a nullity, although it was duly stamped after the institution of proceedings. The Court of Appeal reversed this decision on the ground that the attorney as an advocate duly instructed by the petitioner could properly be given leave to present and sign the petition irrespective of his power of attorney. 13. This is what the Election Court judges had to say about the two cases in relation to the matter that was before it for consideration. “ We think that the rejection of these two decisions by the Court in Jahazi for being concerned with civil procedure rules that do not apply to election petition rules is open to the comment that the power of attorney granted to an advocate to sign a plaint or petition emanated not from the Civil Procedure Rules but from the authority conferred y the donor of the power and the fact that an advocate also derived separate and other authority under the Civil Procedure Rules to sign documents on behalf of his client did nothing to derogate from his powers as attorney be it for the signing of a divorce petition under the Civil Procedure Rules or an election petition under rule 4 (3) of the Election Petition Rules. In other words an advocate with a power of attorney is not circumscribed by the Civil Procedure Rules (which the rejection of these cases in jahazi implied) but by the power of attorney itself. Such an https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 13

page 13 of 31

advocate can operate not only under the particular powers conferred by the Civil Procedure Rules but also go on to do those things authorized by the donor of the power which cannot otherwise be done by him as advocate qua advocate.” 14. In view of the Election court the two aforesaid cases added (and I quote), “considerable persuasive force to the case for the acceptance of an attorney’s signature in the absence of any bar to such acceptance”. (underlining is mine) 15. Mr Kariuki, for the respondent, in support of the Election court’s acceptance of an attorney’s signature in the absence of any bar to such acceptance referred us to the following passages from the judgment of Guthrie Smith, J in Walji’s case where on page 207 after referring to s 36 of the Civil Procedure Code which laid down that any appearance, application or act in or to any Court required to be done by a party may be done by the party or his recognized agent, the judge had agreed that instructing a pleader and signing a “wakalat” was not “an appearance, application or act in or to a Court’ within the meaning of s 36, and had then continued as follows: “ The really relevant section is 39 which says shortly that the appointment of a pleader to make or do any appearance, application shall be in writing and such appointment shall be led in Court. There is nothing in that section to exclude signature by attorney and in Badri Parsad v Bhagwali Dhar 16 All. 240 that signature under a power of attorney would be valid.” 16. Mr Kariuki also referred us to the following passage from the judgment of Pickering J. (page 209) in the same case where he had expressed his concurrence with the following victim from the appeal case of Badri Parsad: “ the appointment of a pleader by a party in a civil suit would in our opinion be valid if made by a writing signed by the party or by a person holding a general power of attorney authorizing him to make such an appointment” There is nothing in the Civil Procedure Code which either expressly or by implication restricts the common law right of any person who is suijuris to eect the appointment of a pleader through an agent.” 17. Still on Walji’s case Mr Kariuki continued that rules of construction of a statue allow use of common law unless words of that statue expressly excluded common law adding that if a rule was capable of two interpretations or meanings then the Court ought to adopt the one which is more sensible and reasonable. 18. With regard to De Souza’s case Mr Kariuki was content with a statement that the election court had taken cognizance of the fact that a power of attorney is a special category of agency. 19. I am unable to accept the reasoning adopted by the Election Court or by Mr Kariuki. In the case of Walji it is clear from the provisions of S.39 of the Civil Procedure Code of that time, which is cited in the 1st quoted passage, that there was no requirement thereunder that an instrument shall be signed by any particular person. It merely required the appointment of a pleader in writing. There was nothing to exclude the signature of an attorney. It was s 51 f the Civil Procedure Code which had enacted that the plaint shall be singed by the pleader (if any) and shall be veried at the foot by the plainti or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, but as was observed by Sheridan, J. “ ……..there is a proviso (S.51) stating that “if the plainti is, by reason of absence or for other good cause, unable to sign the plaint, it may be signed by any person duly authorized by https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 14

page 14 of 31

him on his behalf.” I am of opinion that “absence must be read as meaning absence from the place where the suit is led……..” 20. It will, therefore, be seen that the situation in Walji is totally dierent from what is in the instant petition. There are no such provisions and particularly nothing like the proviso to S 51 in rule 4(3) of our rules. In fact in rule 4(3) of the rules it is specically prescribed for the petitioner to sign which is absent from S.51. In my view there is no parallel to be drawn between the interpretation of the sections of the Civil Procedure Code and the interpretation of rule 4(3) of the Rules. 21. I have already commented on the fact that Mr Kariuki did not have much to say about the De Souza case to us. In fact in my view, the issues for consideration in De Souza’s case also were completely dierent from those in this appeal. In De Souza it was held that although the advocate had been given a power of attorney, which was not stamped at the material time, he had signed the petition because he was an advocate and, therefore, an attorney. The Court had the power and so appointed him as an attorney. The advocate, therefore, could sign the petition. 22. The election Court having commenced its consideration of these two cases with the view that they were “more pertinent than their quick dispatch in Jahazi suggested” eventually ended up with the passage I have already quoted earlier with the nding that the power of an attorney granted to an advocate to sign a plaint (Walji’s case) or a petition (De Souza’s case) emanated not from the Civil Procedure Rules but from the authority conferred by the donor of the power, adding that any separate or other authority derived under the Civil Procedure Rules to sign documents on behalf of his client did nothing to derogate from his powers as attorney be it for the signing of a divorce petition under the Civil Procedure Rules or an election petition under rule 4 (3) of the rules. Mr Inamdar for the appellant found this reasoning whereby the existence of a power of attorney was made more or less the sole basis in deciding the preliminary point entirely erroneous. The election Court he complained was expected to construe rule 4 (3) of the rules and not the law relating to the powers of attorney. Before I deal with these two aspects of the decision given by the Election Court, I must point out that I have dealt at length with these tow cases of Walji and De Souza because they appeared to have formed the basis for the pre-dominant role attributed by the Election Court to the source of power that is given to a donee of a power of attorney when considering the preliminary point taken up before it. 23. I now come to Mr Inamdar’s complaint that instead of construing rule 4(3) of the rules the Election Court had found it t to rely more or less entirely on the power of attorney as a basis for its decision. Mr Inamdar is quite right in his surmise because after the conclusion of the consideration of Walji and De Souza cases what followed over the remaining pages of election court’s decision was entirely taken up with the law relating to agency and powers of attorney which in fact accounted for about one third of the length of the election over Court’s entire decision. To start with there is no dispute over the fact that the grant of a power of attorney is a mere creation of an agency. The donee of a power of attorney is an agent and no more and no less. A written power of attorney of the type that the wife of the respondent had merely adds to the evidential value and nothing more. It does not entitle the donee to any special capacity or status. A power of attorney like an advocate acting for this client, is only a type of agency. 24. Frankly I am amazed at the sudden emergence of a shift of emphasis in the minds of the Election Court judges as to what exactly they had been called upon to adjudicate and decide. The Election Court was not called upon to probe into the source from where the power of an attorney to sign a plaint or a petition emanated. The issue before it was whether the words used in rule 4 (3) of the rules in relation to who was to sign the petition were of a mandatory nature or whether they were of a merely directory nature so as to allow a donee of a power of attorney to sign the petition on behalf of the petitioner. And I would add her that Mr Kariuki had not canvassed that approach to resolve the issue before the Election Court. The two cases of Walji and De Souza were irrelevant to the mater under consideration https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 15

page 15 of 31

before the Election Court judges and the conclusions which they drew from these two cases had the unfortunate eect of leading them completely astray from the real issue before them. 25. I quote below para 703 from Vol 1 Halsbury’s Laws of England 4th Edition p 420 sub-titled competency of principles: “ General rule. It may be stated as a general proposition that whatever a person has a power to do himself he may do by means of an agent. There are, however, two exceptions to the general rule that a person may do by means of an agent whatever he has power to do himself, and these are (i) where the transaction is required by statute to be evidenced by the signature of the principal himself and (ii) where the competency to do the act arises by virtue of the holding of some public oce or by virtue of some power, authority, or duty of a personal nature and requiring skill or discretion for its exercise or where a statute imposes on a person a duty which he is not free to delegate”. 26. I would stop here for a moment an emphasize that the two exceptions are very pertinent to this appeal and reference has been made to them in the authorities cited by Mr Inamdar which I will now proceed to consider. I shall analyse only those authorities which are in nature very similar to the matter before us. In Borough of Totness – Tomas – appellant, Cuming – respondent 7 man & G 87 which concerned a notice of objection to the name of a voter being retained on the list of persons entitled to vote in the election of members for the said borough. The notice of objection was signed by the objector himself. A copy thereof was signed with the name of the objector by another person, by the direction of the objector, and in his presence. Both were addressed correctly to the oending voter. The objector examined the notice and the copy. At the post oce both the documents were compared and stamped by the post master. The notice was retained at the post-oce to be forwarded according to the act. The copy (signed by another person with the name of the objector) was retained by the objector and produced in Court. Tindal C J had this to say with regard to the copy of the notice that was produced in court. “ It appears to me… that the notice of objection was not proved to have been given pursuant to the provision of the 100th section of 6 and 7 vict C 18. The rst question is whether the original notice of objection should be signed by the objector himself. The seventh section of the act says that, “Every person, so objecting, shall give, or cause to be left at the place of abode of the person objected to, a note according to the form numbered (11) in the said schedule (B); and every notice of objection shall be singed by the person objecting”. And the form given in that schedule commences with the word, “I hereby give you notice …….” and concludes “ (singed) AB of (place of abode), on the list of voters for the parish of……….”The natural meaning of these words is, that there shall be a personal signature. And there is great reason and good sense in such an enactment. If the objector were unknown, and was at liberty to get some one else to sign the notice, there might be great diculty in obtaining costs from him. Some shuing person might be put forward in his stead; and great inconvenience and vexation might be the result” And Maule, J said: “ I am of the same opinion. I think that the signature should be that of the party objecting….The form shows that the name and place of abode of the objector are to be at the bottom of the notices and the provisions at the end of the section, requiring every notice to be signed by the person objecting, is in addition to the requisition that his name shall https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 16

page 16 of 31

be at the foot of the notice…..The term signing means marking, in some way, by the party himself…….” And Cresswell & Erle J J were of the same opinilon. In the words of Erle J; “ The provisions of the statute seem to be framed with particular care that a notice of objection shall be signed by the objector himself.’ 27. In his attempt to distinguish this case Mr Kariuki pointed out that the code in the Borough of Totnes case, apart from prescribing that every notice of objection shall be signed by the person objecting, had also prescribed in details all the particulars that were required in the form. That is what had re-inforced in giving eect of mandatoriness to the words “shall be singed by the person objecting.” In our case although a form has been prescribed under rule 4 (4) the particulars to be contained in the form have not been detailed in rule 4 (3) or any other rule. I do not agree with this contention. The law to be followed is as laid down in the relevant section or the rule. The form is primarily for guidance. 28. From the above quoted judgments of the Chief Justice and the two judges it is abundantly clear that 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. 29. The reason for the signing to be done personally is also explained that is to facilitate recovery of costs. As the case of Hyde v Johnson was also referred to with approval by Tindal C J in the Borough of Totnes case I’ll only briey deal with it here. 30. In Hyde & Another Vs. Johnson 2 Bing (N C) 778 the plainti in order to recover a debt barred by the Statute of Limitation, oered in evidence at the trial before the Under Sherrif, a letter written by the defendant’s wife, in her husband’s name, at his request, oering to pay the debt by instalments, and sent by him to the plainti. The evidence was objected to as not signed “by the party chargeable thereby”, within the meaning of 9 G. 4, C 14 s 1. 31. The question was referred to the Court and Tindal C J had this to say: “ The question turns entirely on the construction of the statute, and it amounts in other words to this, - does the statute 9 G 4 C 14, extend to a writing signed by an agent of the party, or is it conned to a writing signed by a party himself. Looking at the words of the statute, it is conned in terms to a writing “signed by the party chargeable thereby” And as the eect of that Statute is, for the rst time, to introduce a legislative exception into the Statute of 21 Jac. 1. C, 16 and thereby protanito, to repeal it, we do not feel justied in extending such exception beyond the plain and unambiguous meaning of the words employed therein. The legislature has, in many statutes, given equal ecacy to written instruments when signed by the parties, and when signed by their agents; but in all those cases express words have been employed for that purpose…….” 32. The Chief Justice then cited the words used in the dierent sections of the statute of Frauds such as in the 3rd section……..”to be singed by the party, or their agents there unto lawfully authorized by writing”, in the 4th section……”in writing……….singed by the party to be charged therewith, or………by him lawfully authorized,” in the 5th section, in regard to devise of lands……” signed by the party so devising, or by some other person, in his presence and by his express’ directions,” and in the 17th section in connection with sale of goods, “signed by the parties…….or their agents thereunto lawfully authorized,” https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 17

page 17 of 31

but, pointed out the Chief Justice, in the 7th section the words used in a declaration of trusts of any lands are”……shall be in writing…….signed by the party.” The Chief Justice then continued. “ It appears, therefore, that the legislature well knew how to express the distinction, not only between a signature by the party and a signature by his agent; but also to describe the dierent mode by which agents for dierent purposes are to be appointed …………When, therefore, we nd in the statute now under consideration that it expressly mentions the signature by the party only, we think it a safer consideration to adhere to the precise words of the statue, and the we should be legislating, not interpreting if we extend its operation to writings signed, not by the party chargeable thereby, but by his agent……..” (Underlining is mine). 33. Referring to the inconveniences that may be caused by a strict observance of such statutory requisites the Chief Justice added,…… “Some inconveniences have been pressed Justice added, ……” in the course of the argument upon our attention, in cases where a total inability of parties to sign may exist; but the nature of the signature which is necessary to comply with the requisites of the statute, is such as to make it almost impossible to suppose a case in which a party could not make such a signature as would satisfy the statute…… we must interpret the statute according to the plain import of the language employed in it….” 34. Mr Kariuki for the 1st respondent, contended that the above views of Tindal C J were expressed in relation to the provisions of the Statute of Frauds and did not apply in the circumstances of this appeal. But that was not the case. The various sections of the Statute of Frauds were used by the Chief Justice merely as an example to demonstrate that the legislature very well knows how to express the distinction that it has in mind. 35. The reference to arguments advanced on the existence of total inability and the decisive views expressed by the Chief Justice thereon also show the lack of merit in his ground so vigorously put forward by Mr Kariuki on behalf of the respondent and which had formed a prominent basis of the Election Court’s decision. 36. Before proceeding further I would, at this stage venture to comment at the way the minds of the election Court judges were working. The rst holding in Jahazi’s case reads as follows: “ “ 1. The provision contained in rule 4 (3) that a petitioner personally sign the petition was mandatory and not merely directly and the petitioners’ noncompliance with it was fatal.” The use of the word “personally” in the above holding is unfortunate because that word has not been used in rule 4 (3) of the rules which reads “…. and shall be singed by all the petitioners.” 37. Now the learned judges of the Election Court in Jahazi’s election petition did not use the word “personally’ in the judgment. I reproduce below the relevant sentence from their judgment. “ We are satised and nd hat the provision contained in Rule 4 (3) that a petition shall be signed by the Petitioner is mandatory and that this petition not having been singed by the petitioner is not properly before the Court” https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 18

page 18 of 31

38. The fault lies with the editor or report of the Law Weekly Reports {1990] LWR who added the word “personally” in the rst holding. But the Election Court judges in this appeal instead of perusing the judgment itself carefully seized upon the word “personally” so added in the 1st holding, in the following manner. “ We would clarify that the sub-rule does not contain the word “personally” and that the impression created to the contrary by the above statements is misleading. But the relevance of this observation is that as the sub-rule might have used the word “personally” but did not and the omission might be deliberate it thereby left the rule to such interpretation as would accord with its sense and meaning and in the particular context in which the construction of the rule is called for. On this view Rule 4 (3) can arguably accommodate the petitioner’s personal signature or any form of lawful signature used by him which is not expressly excluded by the sub-rule.” 39. In my view there was no basis for this type of reasoning indulged in by the Election Court judges. Moreover, there is nothing in the words used or in the context of rule 4 (3) of the rules that suggests that the sub-rule might have used but did not, perhaps deliberately, use the words personally. I will have an occasion at a later to stage dwell more on this aspect. Suce her to add that Tindal C.J. and three other judges with him, made it abundantly clear in Borough of Totnes case that the natural meaning of words; “shall be singed by the person objecting’ or as in our case” ….shall be singed by all the petitioners is that there shall be a personal signature. Introducing a non-existent but self induced possibility of a deliberate omission into the natural meaning of these simple English words is a distortion of their normal meaning of a type which virtually borders a deliberate attempt at misinterpretation of law. 40. A case which in my view is on all fours with the mater under consideration is the South African case of Orpen v Celliers (1903) 20 S C 261 which was cited in Jahazi’s petition also but, on account of absence of a full report, it earned a mere reference by that election court. Facts of this case are that following a recent election of one Petrus Stephanus Celliers as a member of Assembly for the division of Prieska a petition was lodged on 22nd May on behalf of Redmond Newenham Morris Orpen challenging the former’s election and return as amember. On 19th May Orpen had signed a power of attorney to a rm of advocates “to institute proceedings of claim and demand against Petrus Stephanus Celliers and to lodge on my behalf an election petition challenging his return and election as member of ……” This power appears to have been led subject in the petition that request to lodge a petition had been telegraphed to the attorney in Cape Town and that have usual warrant authorising proceedings in the Supreme Court had been posted. 41. Though not very material, it is to be observed that the donee of the power of attorney in Orpen’s case had been specically empowered to le the petition, as against a general power of attorney granted by the respondent herein to his wife more than ve years earlier on 22nd December, 1988, when a need to le such petition was clearly beyond contemplation of the respondent. What, however, is very material is that the advocates in Orpen’s case were the donees under a power of attorney as is the donee in the present appeal 42. The section of the Act in question in orpen’s case provided as follows: “ 4. With respect to the presentation of an election petition under the Act, the following provisions apply: (1) The petition shall be signed by the petitioner or all the petitioners, if more than one.” https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 19

page 19 of 31

43. It is to be noted that he words used in the above sub-section are virtually the same as those used in our rule 4 (3) which read (and I quote again): “ 3. 44. The petition shall……and shall be signed by all the petitioners.” After stating that this provisions (section 4 (1) is very clear, and in form and time appears to be imperative, Maasdarp J commented on the diculty to decide whether words in an Act, which are apparently imperative, may not in reality be merely directory and then continued: “ ……it seems that where a statute confers a right privilege, or immunity, the regulation, or forms and conditions, which it prescribes are imperative, in the sense that the nonobservance of them is fatal. It seems to me, the case now before us answers this description. It must be borne in mind that the presentation of petitions to the Court is of common occurrence, and if Legislature had no special purpose in view, they might have allowed these petitions to be presented in the ordinary manner, in which case the signature of a duly appointed attorney would have been sucient. Instead of that, the Legislature has made this special provision for the signature of the petitioner himself. It is certain that the signature of the petitioner himself removes all diculty and doubt which might arise as to the nature and validity of the power of attorney where an attorney might have acted. Such doubt might cause serious trouble to the parties interested in the trial of the petition This very case is an illustration in point, when we consider what diculty there seemed to be in the discovery and production of the power of attorney. The want of the petitioner’s signature to the petition is in my opinion, fatal to the validity of the petition presented by the applicant in this case, and he cannot proceed further with it. The application must be refused, with costs.” And Kotze J said: “ By section 4 of Act 9 of 1883 it has provided that where an election petition is presented, it shall be signed by the petitioner, or all the petitioners, if more than one. These words are, I think, preemptory, and do not allow of a petition being signed by an agent on behalf of the petitioner. The intention of the Legislature, whatever its reasons may have been must be gathered from the language which it has though t to employ. The Legislature has indicated how the right which it creates of presenting a petition is to be prosecuted, and has provided in what way this is to be done. It has chosen to say that the petition shall be signaled by the petitioner, and this is equivalent to providing that it must be so singed. We cannot depart from the clear and exact language of the Act. I am therefore of the opinion that the application should be refused with costs.” 45. Mr Kariuki in his comments attempted to distinguish the authority on the ground that the problem created in Orpen’s case was the delay in ing the power of attorney which had caused diculties in the discovery and production of the power of attorney. However, realising the futility and absence of merit in his argument Mr Kariuki submitted that as the entire South African Act was not before the Court Orpen’s case ought to be rejected as an authority. In Kenya the Constitution had given a right to challenge an election and the Act (Cap 7) had prescribed the procedure to do so. Finally Mr Kariuki argued that Maasdorp J in Orpen’s case had referred to Maxwell but had not dealt with the application of the common law principles. In my view, there is nothing in Mr Kariuki’s submissions to detract from the high persuasive value of Orpen’s case in this appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 20

page 20 of 31

46. At this stage I feel constrained to observe that it was neither urged before the judges in Orpen’s case nor for that matter in any of the authorities that were cited, nor did it even ever cross the minds of those judges to approach this problem in the manner adopted by the Election Court judges as is shown by the following passage from their decision after they had concluded their analysis of the cases cited to them: “ What can be deduced at this stage in this. In considering who may sign an election petition we look at election petition law and its rules. In considering whether any particular form of signature is sucient for the purposes intended we turn to the law governing, and in a case involving signature, under a power of attorney it is the law governing that subject that comes into consideration irrespective of the category or type of civil proceeding by or in which the issue is raised and unless expressly excluded it matters not whether the signature of the attorney was on a document in an ordinary civil suit or on a petition challenging an election result.” 47. Having thus evolved this erroneous approach in their minds, the Election Court judges then proceeded to do research in the subject of power of attorney which, as I pointed out earlier, extended over a one-third of the length of their entire decision. Mr Indamdar had also cited other cases all of which supported the view expressed in the above cases that in a statutory provision words like, “…..shall be signed by the party or party chargeable thereby or by petitioner/s” are of a mandatory eect”. However, there is the English case of RE Prince Blucher Ex Parte Debtor [1931] 2 Ch 70 which I cannot ignore because of the reasons given by the Election Court judges in their attempt to distinguish the meaning of the pertinent words under consideration therein from those used in rule 4 (3) of the rules. Section 16 sub-s (1) of the Bankruptcy Act, 1914, in England required a debtor, intending to make a proposal for a scheme of composition, to lodge with the Ocial Receiver “a proposal in writing signed by him” embodying the terms of scheme etc, etc. The proposal in this case was not signed by the debtor himself but by his solicitors. Evidence was produced, which was accepted, that the debtor was “still so seriously ill as to make it quite impossible for him to discuss any matters of business, and that any attempt to explain to him business details or proceedings would have a serious and possibly a fatal eect on him.” On appeal it was held, arming the decision of the Registrar, that no proposal for composition had been lodged by the debtor within S 16, sub-section 1, of the Act; that the words “signed by him” were explicit; and that there was no ground for altering the words of the statute or giving to the statute a judicial interpretation which would in eect be an amendment or alteration of its plain terms. 48. Mr Kariuki’s comments on this case were that as the debtor was so seriously ill there must have been a doubt as to whether he could take the responsibility of performing his obligations under the proposal. The respondent on the other hand was mentally alert and had supplied the factual basis for the petition. I do not accept this as a reason to distinguish the two cases. Mr. Kariuki then also referred to the reliance placed by the court in Re Blucher on the views expressed by Tindal, CJ, in the case of Hyde v. Johnson. Those views, Mr Kariuki contended, were made in relation to the various sections in the Statute of Frauds when the Chief Justice dealt with the meaning of the words ‘signed by the party chargeable thereby”. There was nothing in the relevant statute of Kenya which had ousted the common law. I have already, when analyzing the case of Hyde and another vs Johnson earlier, rejected this submission of Mr Kariuki. 49. The Election Court distinguished Re-Blucher from the instant case in the following terms; “ It is arguable whether the phrase “singed by him” is equivalent to “signed by the petitioner’ in rule 4 (3), apart from which this decision is distinguishable on the more signicant https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 21

page 21 of 31

dierence that the signature by “debtor’s solicitor’ is not on the same legal footing as signature by “a petitioner’s attorney” as in the instant case.” 50. The statement whether the phrase “signed by him” is equivalent to “signed by the petitioner” in rule 4 (3) is arguable is, in my opinion, completely void of any substance whatsoever. There is no dierence in the meaning of the two phrases. And to state that the signature by “debtor’s solicitor’ is not on the same legal footing as the signature by a “petitioner’s attorney” equally has no merit. The Election Court surprisingly did not deem it t to show in what signicant way the two signatures in question were not on the same legal footing. A duly appointed solicitor and a duly appointed attorney are both agents. Either may be granted, orally or in writing, authority to do specic or general acts. 51. If the petitioner (the 1st respondent herein) had given a power of attorney to a solicitor instead of giving the power of attorney to his wife and the solicitor had signed the petition, would the position then have been any dierent from that obtained in Orpen’s case or in re-Blucher?. The answer is a denite no. To my mind the attempt to distinguish on the ground that in Re-Blucher’s case the solicitor’s signature is not on the same legal footing as the signature by “a petitioner’s attorney” is articial and fallacious. 52. Having dealt with the submissions made by Mr Inamdar and Mr Kariuki’s responses to each one of them I will now consider the arguments and submissions made by Mr Kariuki in support of the decision of the Election Court. Mr Kariuki spent a considerable time in showing that the case of Jahazi was not relevant and how the authorities cited by Mr. Inamdar were of no help to the appellant. I have dealt with Mr. Kariuki’s submission on these two matters. Finally Mr Kariuki cited his own authorities which he contended supported the views and ndings of the Election court judges which he supported. He started with the two local authorities that is De Souza and Walji which I have already considered and rejected together with the conclusion drawn therefrom by the Election Court. 53. Mr Kariuki next cited notable statements from Cardinal Rules of Legal Interpretation by E. Beal 2nd Ed. made in the course of certain decisions demonstrating the eect of statutes on common law. He also cited passages from Maxwell on interpretation of Statutes, 12th Ed, and Halsbury’s Laws of England Vol 1, 3rd Ed P 169. Most of what was quoted from these text books have, in one way or the other, been considered and applied in the cases cited by both the learned advocates. Of the rest of the cases I will now consider those on which Mr. Kariuki placed a great deal of reliance. 54. In the case of Goodman v. Eban Ltd. (1954) All E.R. 763 which together with Lall v Jeypee Ltd. [1972] E A 12 and the London County Council vs. Vitamins Ltd. [1955] 2 All ER 229 appeared to have been the main weapons in his arsenal Mr Kariuki drew attention to the denition of the word “signed: signature” in Stroud’s Judicial Dictionary 2nd Ed Vol 4 p 2783 which is given as follows: 1. 55. Speaking generally, a signature is the writing or otherwise axing, a person’s name, or a mark to represent his name, by himself or by his authority …………….with the intention of authenticating a document as being that of, or as binding on, the person whose name or is so written or axed…….” Mr Kariuki specically stressed the words “or by his authority” which in his view meant that the person could sign through his agent. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 22

page 22 of 31

56. The denition is a statement of the common law rule which is set out as a general rule. But the ‘general rule” as I have indicated earlier from a passage from Vol 1 Halbury’s Laws of England para 703 page 420 is subject to two exceptions which I once again quote: “ (1) where the transaction is required by statute to be evidenced by the signature of the principal himself and 2. where the competency ……..or where a statute imposes on a person a duty which he is not free to delegate.” 57. Mr Inamdar submitted that in the instant appeal the denition in Stroud’s Judicial Dictionary being a statement of a common law rule was, in consequence of the aforesaid 2 exceptions, displaced by the Election Petition Rules which had the force of a statute. Rule 4 (3) of the Rules was clear and explicit and when considered in conjunction with rules 9, 10, 24 and 26 (and I would add rule 28 (1)) of the Rules the mandatoriness of the sub-rule is conrmed that the signature of the petitioner himself was the only valid one to be placed on the petition. In Mr Inamdar’s view the case of Goodman in fact supported the appellant’s contention because under it the petition would have been found to have been properly signed by the petitioner if he had by his own hand placed a mark or his stamp on the petition. 58. Briey the facts in Goodman’s case were that the plainti, who practices as a solicitor under the name of a rm, delivered to the defendants a bill of cots accompanied by a covering letter at the end of which he had impressed by means of a stamp a facsimile of his signature in the name of his rm. In an action for the recovery of the costs the defendants contended that he letter was not “signed” as required by he Solicitors Act, 1932, S65 (2) (i), and that, therefore, the plainti was not entitled to recover the costs under s 65(1). It was held (Denning L J dissenting) that the signature on the letter having been shown to have been placed on it by means of the stamp by the plainti himself, the letter must be taken to be signed by him within the meaning of S 65 (2) of the Act 1932. The underlining of the word “by the plainti” is mine because the placement of the stamp constitutes a signature only if it is placed by the person (the plainti in that case) himself who is supposed to be signing. This is what Sir Raymond Evershed, M R after distinguishing this case from Re Prince Blucher said: “ In my judgment, therefore, it must be taken as established that where an act of Parliament requires that a document be “signed’ by a person, prima facie the requirement of the Act is satised if the person himself places on the document an engraved representation of his signature by means of a rubber stamp. Indeed, if reference is made to the Shorter Oxford English Dictionary 2nd Ed Vol 2 p 1892, it will be found that the primary meaning of the verb “to sign” is not conned to actual writing with a pen or pencil, but appears to have related to marking with the sign of the cross. The later meanings include. (ii) to place some distinguishing mark upon (a thing or person)….. (iv) to attest or conrm by adding one’s signature to ax one’s name to….(a document etc) It follows, I think, that the essential requirement of signing is the axing, either by writing with a pen or pencil or by otherwise impressing on the document one’s name or ‘signature’ so as personally to authenticate the document.” 59. When confronted with this passage from the judgment Mr Kariuki conceded that the petitioner (respondent in the instant appeal) could have placed by means of a rubber stamp a facsimile of his signature on the petition. In my view the arguments based on the respondent’s disability, and so much https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 23

page 23 of 31

harped upon by the Election Court judges, disappear into nothingness in face of this authority which, Mr Inamdar very rightly surmised, supported the appellant’s rather than the respondent’s case. 60. Four other cases which were cited by Mr. Kariuki being Re Whitley Partners Ltd. (1886) C D 33) the Queen v Cowper 24 QBD 60, The Queen vs. The Justices of Kent LR 8QB 305 and France vs Dutton [1891] 2 QB 208, were also cited by him to the Election Court who after considering the same did not nd any of them of much assistance to the respondent’s case (petitioner therein). I, therefore, do not propose to deal with them here but I will quote below relevant passage from the decision of the Election Court in respect of the aforesaid four cases. “ In the four immediately preceding cases the common law Rule”quacit per alium per se’ (a man may sign by an agent) was recognized as applicable except where statute otherwise provides. As this common law rule must be excluded in the construction of Rule 4(3) which is a statutory provision these decisions do not greatly assist the petitioner in this case. But the following passages are helpful for they tell us: “In every case where an Act requires a signature it is a pure question of construction on the terms of the particular Act whether the words are satised by the signature of an agent. In some cases on some Acts the courts have come to the conclusion that personal signature was required. In other cases on other Acts they have held that signature by an agent was sucient” (per Bowen LJ in RE Whitley Partners Ltd (supra) at page 340) 61. No doubt at common law, where a person authorized another no sign for him the signature of the person so signing is the signature of the person authorizing it; nevertheless there may be cases in which a statute may require personal signature “per Blackburn J in Queen v. The Justices of Kent (supra) at Page 307)”. 62. There are three other cases to which Mr Kariuki drew attention of the Election Court and which he also cited to us. These are Kammins Ballrooms Co Ltd. v Zennith Investments Ltd [1971] A.C. page 850, Attorney General vs Prince Ernest Augustus of Hanover [1957] AC 436 and Lall v Jeypee Investments Ltd [1972] EA 512. Once again all these were rejected by the Election Court and I quote from its decision: “ As these decisions favour strict construction of statutes Mr Inamdar quite correctly points out that if properly considered they would support the respondent’s case (appellant herein) rather than the petitioner’s. And we agree with that….” 63. However, the Election Court correctly stated the rules of construction stressed in these authorities and to which Mr Kariuki drew our attention particularly when he analysed Lall vs Jeypee’s case. These may be summarized as follows in the words of Lord Greene M R in re A Debtor (No 335 of 1947) [1948] 2 All E R 533 – 536 E), If there is one rule of construction for statutes and other documents it is that you must not imply anything in them which is inconsistent with the words expressly used….True it is that English is a exible language but that does not mean that one can disregard the natural and ordinary meaning of the words used unless it is apparent that some other meaning was intended. If language is clear and explicit the Court must give eect to it.” And as per Viscount Dilhorne in Karmmns’s case “Words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 24

page 24 of 31

And as was held in Lall v Jeypee’s case; “ Every statute must be interpreted on the basis of its own language since words derive their colour and content from the context and the object of the statute is a paramount consideration.” 64. A case in which the question of signature in the light of the context and the object of the statute was considered at length is the London County Council vVitamins Ltd [1955] 2 All E R 229. In this case, which was cited with great authority by Mr Kariuki, a clause in a tenancy agreement provided that the tenancy “if determined by the (landlords) it shall be by a written notice signed by the valuer to the landlords….if determined by the tenants it shall be by a notice in writing signed by the tenants and served upon the valuer or one of this assistants……” A notice to quit given by the landlords was signed: “J E J T valuer and agent of the (landlord)”, but the valuer’s name was written by the value’s assistant without any indication that he was acting on behalf of the valuer or with his authority. It was held that provided the signature was duly authorized by the valuer, the notice to quit was validly signed, since there was nothing in the terms of the agreement to require a personal signature or to displace the common law rule that a document, including a notice to quit, may be signed by an authorized agent in the principal’s name without indicating that the signature is appended by an agent. Denning LJ in interpreting the words ‘signed by the valuer” sought assistance from a consideration of “the context and the object of the statute” in the following words on p.231 letters G & H: “ …….Take next the case where the landlords desire to give a notice to quit. The notice has to be a written notice “signed by the valuer to the council.” The valuer is not designated by name, but by his oce. The tenants might not even know his name. Valuers come and go without the tenants being any the wiser. The personality of the valuer does not come into it. In these circumstances, I think that a signature by proxy is permissible…..” 65. I have underlined the word “personality” as I propose to refer to it hereafter. 66. And similar sentiments were expressed by Parker, L J on page 233 letters H J, in the following words: “ That being so, the only question is whether the word “signed” in the context of the tenancy agreements requires a personal signature. It has always been recognized that, certainly in some statutes, the context may demand a personal signature, c.f Hyde v Johnson, and I conceive that, even apart from statute, the context is a matter to be taken into consideration. For myself I can see nothing in the context here which requires an exception to be made to the common law rule. It is said that the notice to quit should bear the personal signature of the valuer, who in fact will have signed the tenancy agreement, for only thus will a tenant be able to know that the notice is valid. The valuer who has signed the agreement may, however, no longer occupy that position, as indeed was the case here. The emphasis is I think, rather on the oce or department of valuer and agent than on the man who occupies the oce or department. That being so, I see no reason to depart from the common law rule.”. 67. Putting aside the question of “context and object of statute” for the moment, as that will involve a study of rule 4(3) of the Rules in light of the context and object of the Act and the other rules, I would draw attention to the use of the word “personality” by Denning L.J. in his above quoted passage. Clearly the petition that has been led involves the petitioner personally. The complaints made in the petition and particularly those alleging irregularities all are claimed to have caused prejudice to the petitioner personally. Allegations made in petitions more often than not are of a nature which if proved can result in a disqualication of the respondent/s concerned from again seeking election. These are grave https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 25

page 25 of 31

matters in which personal responsibility is called for on that score alone I am constrained to nd that this authority also supports the case of the appellant herein by showing that rule 4(3) of the rules must be mandatory. 68. I have already referred to the rejection by the Election Court of the Local case Lall vs Jeypee Investments Ltd. [1972] E.A 512. This is another case where after a consideration of “the context and object of the Act (the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act) (Cap 301) the Court held that as the Act was for the protection of tenants therefore the provisions for notice were mandatory and not directory and that a notice not in accordance with the Act was ineective even if it followed a prescribed form. Mr Kariuki urged us to follow the principles of construction of rule 4(3) of the rules as laid down in Lall’s case. His reasoning followed these lines, that S 44 of the constitution had given a right to every voter to challenge an election. The manner of execution of that right to challenge an election was laid down in the Act (Cap 7) and the rules made thereunder. The intention of the Parliament was to confer a right to the voter to challenge an election. So the Court when construing rule 4(3) of the rules must do so in a manner consistent with the intention of the Parliament. Thus the insertion of the word “personal” when interpreting the said rule would defeat the purpose of the rule and the intention of the Parliament. Such an interpretation would also oend the common law rules and there was nothing in the wording of the sub-rule to show that the common law rule had been ousted. 69. As to the need for the context and the object of the statute to be kept in the fore-front as advocated in Lall’s case when interpreting a statue I am fully mindful of that. I will start with the observation that from the authorities that were cited all the relevant ones have concluded that the words such as ‘signed by the party” or “signed by him” in a statutory provisions must be given their natural meaning and that is that the party must personally ax his signature. As to “the context and the object of the statute” aspect of the issue I’ll rst start with rule 4(3) of the Rules. According to Mr Inamdar there are two mandatory requirements in the sub-rule. The rst is “The petition shall conclude with a prayer….” Then follow words to illustrate by examples how the prayer/s are to be couched. The second requisite is “and shall be signed by all the petitioners.” The spate of authorities, as I said earlier, which I have considered have all concluded that these words are of a mandatory nature. Of particular interest is the Orpen’s case where the facts and the wording of the section – “4(1) The petition shall be signed by the petitioner or all of the petitioners, if more than one,” are on all fours with the facts of the present appeal and the sub-rule in question. It was held, and I re-quote the passage from the judgment of Kotzwe, J; which incidentally also echoes and considers the sentiments of Mr Kariuki with regard to observing the Constitution and the means to give eect to it through the provisions of the Act and the rules thereunder: “ By section 4 of Act of 1883 it is provide that where an election petition is presented, it shall be signed by the petitioner, or all the petitioners, if more than one. These words re, I think, preemptory, and do not allow of a petition being signed by an agent on behalf of the petitioner. The intention of the Legislature, whatever its reasons may have been, must be gathered from the language which it has thought t to employ. The Legislature has indicated how the right which it creates of presenting a petition is to be prosecuted, and has provided in what way this is to be done. It has chosen to say that the petition shall be signed by the petitioner, and this is equivalent to providing that it must be so signed. We cannot depart from the clear and exact language of the Act. I am therefore of the opinion that the application should be refused with costs.” 70. I have underlined the sentences apropos to the aforesaid sentiments of Mr Kariuki. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 26

page 26 of 31

71. Now considered rule 4(3) of the rules in light of the provisions of rules 9, 10, 24(1), 26 and 28(1). With regard to these rules Mr Kariuki’s submissions were that it was after the appointment of an advocate by a petitioner in the manner prescribed in rule 9 that the advocate was permitted to act as an agent of the petitioner. That explained for the absence of the word “advocate” from rule 4(3) of the rules and its addition in the relevant subsequent rules. In his view there was nothing signicant in these submission on behalf the appellant. 72. I do not agree with Mr Kariuki” understanding of these rules. The Constitution has given a right to any person, who is entitled to vote in the election, to challenge an election (Sec. 44 & 10 of the Constitution) and that the correct procedure to do so has also been prescribed in the Act (Cap 7). When strongly championing the rights granted to a voter under the Constitution and the Act. Mr Kariuki completely over-looked the equally important factor relating to the obligations which also were imposed on the voter by the Constitution and the Act. And one of the obligations which is placed on a prospective petitioner is to strictly adhere to and observe the rules prescribed in the procedure in order to be able to enjoy the rights to which he is entitled under the Constitution. So if the petitioner has failed to meet any obligation which happens to be of a mandatory nature then it will equally defeat the purpose of the Constitution and the Act if the breach of the mandatory obligation is viewed with a blind eye. Constitution is not a one-way trac of rights only. 73. If the whole set-up of the rules is analysed and studied step by step, then it will be noticed that under the rules the role of an advocate as an attorney at law or as an agent is not recognized at all unless and until when, with the petition, the petitioner leaves at the oce of the Registrar a notice in writing signed by him giving the name of an advocate who he has authorized to so act for him – rule 9. That would appear to be the only type of agency recognized under the rules. Once the authority of the advocate attains recognition, that is after rule 9 has been complied with, one will observe that the advocate is not allowed to do acts on behalf of the petitioner. Thus rule 24(1) allows an advocate on behalf of the petitioner to sign an application to withdraw a petition. Following the publication under rule 25 of the application to withdraw a petition under rule 2, any qualied person or some one on his behalf now intending to be substituted as a petitioner may within the prescribed period notify the Registrar under rule 26 of his intention, at the hearing of the application to withdraw made under rule 24(1), to apply (now to the Election Court) to be substituted for the petitioner (in the same petition). Noncompliance with this rule is not fatal and it will be observed that it permits for some one on behalf of the person intending to be substituted also to make the application. Recognition of an agent, not necessarily an advocate, to so act is specically provided in this non-mandatory rule. 74. I now come to rule 28(1) where actual substitution of the petitioner is to take place in the presence of the Election Court. I quote below rule 28(1): “ On the hearing of the application for withdrawal any person who might have been a petitioner in respect of the election to which the petition relates may apply to the Election Court to be substituted, as petitioner, for the petitioner desirous of withdrawing the petition.” 75. Keeping in mind the provisions of Rules 9, 24(1) and 26, one is immediately struck with the signicant omission from the above rule of the words “an advocate” (rules 9 and 24(1)) or “any person on behalf of” ….(rule 26 which had made the agency know wider to include either an advocate or some other person on behalf of the person intending to take over as the petitioner). So rule 28(1) has prescribed for the intending petitioner to appear and apply personally to the election court to be substituted for the petitioner who has applied to withdraw. The Legislature clearly intended to ensure that there was no inconsistency in the form of an actual personal involvement between the application to the Court https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 27

page 27 of 31

by the intending petitioner under rule 28(1) and the signature of the petitioner under rule 4(3) of the rules. Thus it will be sent That when the process reaches the crucial point of putting life or competency into the petition whether under rule 4(3) or under rules 26 and 28(1), the petitioner’s requisite acts have been prescribed in a manner so as to involve him personally. Common law has been ousted by the mandatory nature of these statutory rules. I am once again reminded of the words used by Tindal C.J. In Hyde vs Johnson, cited earlier, after he had gone through the various sections of the Statute of Frauds in order to illustrate what he had in mind, and which I re-quote: “ It appears, therefore, that the legislature well knew how to express the distinction, not only between s signatures by the party and a signature by his agent; but also to describe the dierent mode by which agents for dierent purposes are to be appointed….When, therefore, we nd in the statute now under consideration that it expressly mentions the signature by the party only, we think it a safer construction to adhere to the precise words of the Statute, and that we should be legislating, not interpreting, if we extended its operation to writings signed, not by the party chargeable thereby, but by his agent….” 76. 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. 77. There is one nal point to be considered and that is regarding the assistance that the Election Court had sought from the fact that the Electoral Commission had accepted the attorney’s signature on the nomination paper. To my mind it was wholly wrong for the Election Court to have done so. The action or decision by the Electoral Commission, perhaps committed on the spur of the moment, is not a judicial decision given by a competent Court of law. It is not any kind of authority for this Court to follow nor is it binding on any other court in any way. It does not even have any persuasive value. Finally the appellant was not a party to that decision of the Electoral Commission. The Election Court gravely erred even in referring to it as a guidance of any sort. 78. I have virtually covered all the aspects from which the Election Court judges had considered the preliminary point taken up before arriving at their decision, the grounds on which Mr Inamdar based his assault on that decision and the spirited defence put up by Mr Kariuki in support of the decision of the Election Court. The petition was incompetent ab-inito. It was still born. Mr Kariuki, understandbly and commendably, made every eort to infuse life into it, but one cannot succeed in doing that in case of a still-born. The Election Court judges, for reasons best known to them only, took it upon themselves to put life into a still-born. That was not its function. Its function was simple, just to nd on a judicial basis whether words “and shall be signed by all the petitioners’ were of a mandatory or a directory nature. I take this opportunity of expressing my gratefulness to Mr Inamdar and Mr Kariuki for their judicious arguments and submissions and the authorities which they both cited and which proved invaluable in the assistance they gave me. 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. I have now given my reasons for that decision. Omolo JA Reasons for the Judgment 1. My Lords, I have had the advantage of reading in draft the very full and well-reasoned judgment of my Lord Cockar, and were it not for the importance of the matter before us, I would have had nothing at all to add to that judgment. https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 28

page 28 of 31

2. Mr Kariuki, for the respondent contends that the Constitution of our Republic confers on the qualied citizens the right to challenge an election in the High Court. That contention is undoubtedly correct. But under the authority of the said Constitution the National Assembly and Presidential Elections Act, the Act, also sets out the procedure, manner and method which those who wish to exercise there right under the Constitution must follow. As Kotze, J Said in the South African case of Orden v Cilliers (1903) 261:“ …….The intention of the Legislature, whatever its reasons may have been must be gathered from the language. Which it has thought t to employ. The Legislature has indicated how the right which it creates of presenting a petition is to be prosecuted and has provided in what way this is to be done….” 3. The supreme law-make in Kenya has provided in Rule 4(3) of the National Assembly Elections (Election Petition) Rules 1993, the Rules, that the petition. “ …..shall be signed by all the petitioners.” 4. It is not in our province to question the wisdom of Parliament in so providing and those who wish to take advantage of the Constitution and le petitions must understand that they are also under an obligation to comply with the rules provided. Mr Matiba, to use Mr Kariuki’s words, signed the petition through his wife, and the Election Court thought this was sucient for the purposes of Rule 4 (3). The Court was clearly wrong because the words “shall be signed by the petitioners” are mandatory and allowed no other mode of signature. The judges of the Election Court were of the view that if parliament had intended that a petitioner must sing his petition himself, it (parliament) would have used words like and “and shall be personally singed by the petitioner”. With respect, where the word “shall” is used, it is not necessary to have such additions like “personally” and the like. Where the word “shall” is used in connection with second or third persons it invariably implies. “ command and failure or conditional duty, obligation ……” etc – see The Concise Oxford Dictionary 17th Edition. 5. The commandments of our God and crater handed to Moses on Mount Sinai were in these terms: “ thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against thy neighbour. Thou shalt not covet thy neighbour’s house, thou shall not covet thy neighbours wife nor his man-servant, nor his maidservant, nor his ox nor his ass, nor anything that is thy neighbour’s”. 6. These are commands and they are commands because they use the words “shall not” where second and third persons are being addressed. So it was idle for the judges of the Election Court to seek for words such as “personally” on the Rules. Even the history of mankind shows that where the word “shall” is used in this context, it implies compulsion. Judicial history is in noway dierent. Accordingly Mr Matiba was himself obliged to sign the petition. Mr Kariuki asked us during the arguments what a Kenyan without both hands and who wants to le a petition is supposed to do. The answer to that question must await the appearance of such a Kenyan in these Courts and mode adopted by him in https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 29

page 29 of 31

executing his petition. In any case Mr Matiba was not in that condition; if he were, he would have no business wanting to be the President of Kenya. 7. Again, Mr Kariuki had addressed at a great length on the principles of the common law of England, which is applicable in Kenya by virtue of section 3 (1) (c) of the Judicature Act, Cap 8. While common law, which is really no more than the common sense of the people of England (which, through usage, has acquired the force of law), is applicable in Kenya, it only applies subject to the Constitution of Kenya and subject to all other written laws made by Parliament. Rule 4 (3) is a statutory provision and accordingly the application of common law to the subject under discussion was excluded. Mr Kariuki contended that in interpreting the Rule, we should apply the principles of common law. I would agree with Mr. Kariuki that, where the meaning of words used in a statute is not clear or the words are ambiguous and the statute itself does not dene them then a Court would be entitled to have recourse to the common law particularly where such words had previous to the passing of the statute been dened or interpreted by the Courts and such denition or interpretation must be taken to have been known to the legislature. But in the present appeal I can nd no diculty or ambiguity in the words. “ ……….Shall be signed by the petitioner or petitioners” and accordingly there is no occasion for having recourse to the common law. 8. Finally, it was submitted to the Election Court, and in a muted way before us as well, that if we hold that the petition is invalid because of the absence of Mr Matiba’s signature thereon, we would in eect be rewarding president Moi for some alleged wrongful acts committed against Mr Matiba while he was in detention under the preservation of the public security Act. Mr Matiba alleges that while he was in detention, he was poisoned, apparently with the intention of taking away his life, and that because of the poisoning he suered a stroke which subsequently rendered him incapable of signing documents. He accordingly blames president Moi for his incapacity and hence his contention that if it is held that his petition is invalid for lack of his signature, President Moi is being rewarded for alleged wrongs committed against him. With the greatest respect, these cannot be valid legal arguments in answer to the provisions of Rule 4 (3). It is clear Mr Matiba is alleging the commission of serious criminal oence (s) against him by President Moi. Mr. Matiba’s legal advisers must be aware of the legal position that the only way in which they could prove these allegations in this petition would be to produce a certicate of previous conviction by a competent court. Again, even if Mr Matiba were to the minded to prosecute those claims in this petition, he could not have been allowed by the Election Court to do so because of the provisions of section 14 (1) of the Constitution which bars the bringing of criminal prosecutions against an incumbent President. I think these allegations were being made more for their nuisance value and probably to play up to the public gallery, rather than with any genuine belief that the Courts could allow them to be proved. Before I leave the matter, I cannot help but state that Mr. Matiba strikes me as a man how likes to play for very high stakes. I am surprised that his advisors would let him be caught up on such an elementary requirement like signing a petition. For the reasons given by my Lord Cockar and the ones herein, I agreed that the appeal be allowed with costs to the appellant. DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF APRIL, 1994. JM GACHUHI …………… JUDGE OF APPEAL A.M. COCKAR https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 30

page 30 of 31

…………… JUDGE OF APPEAL R S C OMOLO JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTAR https://new.kenyalaw.org/akn/ke/judgment/keca/1994/117/eng@1994-04-22 31

page 31 of 31