ELECTION PETITION DISMISSED FOR LACK OF SERVICE

Reported by ABRAHAM GACHIE
May, 2008

Nairobi-Kenya

Nasir Mohamed Dolal Vs Duale Aden Bare & 2 Others [2008] eKLR
(www.kenyalaw.org)

 High Court, at Nairobi (Visram J) 12th May 2008
 "dropping off court process at the gate of the MPs brother's house
could not constitute 'personal service' on the MP"

 The High Court has stuck off an election petition against Dujis MP
Mr Duale Aden Bare. The Petition was brought by one of his opponent
in the 2007 December Elections Mr Nasir Mohamed Dolal.

 Dismissing the petition High Court Judge Alnashir Visram said that
Mr Bare was not served with the petition papers as required by law.

 Mr Dolal had sought through a petition presented on 25th January
2008 to challenge the election results of Dujis constituency and had
prayed the court to declare the election of Mr Bare as the MP null
and void.

 However the MP sought to have the election petition struck off
arguing that he had not been served with election papers in
accordance with the law. He argued that the law required an election
petition to be presented and served within twenty-eight days after
the publication of the election results in the gazette. He said that
whereas the petition was infact drawn, filed and presented on time,
it was not properly served on him. He found out about the election
petition against him from a notice in the Daily Nation newspaper of
31st January, 2008.

 Mr Dolal on the other hand told the court that the MP was personally
served at his residence in Lavington. He vividly recounted how the MP
was served with the election petition papers. He said that he
accompanied his process server Mr Felix Munuve to the MPs house at
4.30pm on 25th January 2008, and on reaching the gate, he remained in
the car, while Mr Munuve proceeded to talk to the watchman. The
watchman then called the MP to the gate and on his arrival, Mr Dolal
came out of the car, identified the MP to the process server who
served him personally with the petition.

 Mr Bare the MP deponed that he had no residence in Nairobi and that
the 'house' referred to by Mr Dolal the petitioner appeared to fit
the description of his brother's house in Kileleshwa( not Lavington).
He also said that on 25th January, 2008 he was not in that house but
had spent most of the day in parliament with other members of
parliament.

 He narrated to the court a full account of his activities on the
25th January, 2008. He testified that he was at parliament in the
morning, walked to Jamia Mosgue for prayers at Lunch time in the
company of a colleague MP, and had lunch with her at 2pm. He spent
the rest of the afternoon at his Continental House office until
4.45pm, had tea at parliament with his colleagues and proceeded to
Savannah Restaurant in the city center with a colleague and then to
parklands at 6.15pm.

 Mr Dolal through his advocate Mr Mutua urged the court to disregard
the MPs testimony on account of serious contradictions as to time.
The court however dismissed his plea arguing that it was in the
nature of human conduct to differ on basic things, such as time.
People don't always remember everything in exactly the same way, the
judge said. He observed that Mr Dolal and his process server had also
contradicted each other on the time they went to the MPs "house", with
Mr Dolal saying it was 4.30pm while Mr Munuve the process server said
it was at 5.30pm. The judge observed that that alone did not make
them untruthful as unlike in a criminal trial, the precision of time
was not so crucial in civil disputes where the court was required to
decide issues of fact on a balance of probability.

 Justice Alnashir Visram considered at length what personal service
envisaged in the light of the Court of Appeal case In Kibaki vs Moi
where the court had stated:

 "Election petition are of such importance to the parties concerned
and to the general public that unless parliament has itself
specifically dispensed with the need for personal service, then the
courts must insist on such service".

 The Kibaki vs Moi decision handed by a bench consisting of five
eminent Judges of Appeal had elicited considerable public debate. The
arguments canvassed there were that there were circumstances where it
was not possible to effect "personal service", for instance on a
sitting president whose security detail would not allow personal
service.

 The Judges of Appeal in that case had ruled that:

 " . . . Section 20 (1) (a) of the Act (the National Assembly and
Presidential Elections Act cap 7) does not prescribe any mode of
service and in those circumstances, the courts must go for the best
form of service which is personal service. Before this Court, the
appellant did not offer any reason why he did not go for personal
service though in the High Court, it had been contended that the 1st
Respondent in his capacity as the President, is surrounded by a
massive ring of security which is not possible to penetrate. But as
the Judges of the High Court correctly pointed out no effort to serve
the 1st Respondent was made and repelled . . . .

 The decision clearly recognized that if personal service which is
the best form of service in all areas of litigation is not possible,
other forms may be resorted to."

 Justice Visram also cited the recent Court of Appeal case of Mwita
Wilson Maroa vs Gisuka W Machage & Others where the court held that
personal service was "actual physical service".

 The Judge therefore found that personal service was the best form of
service as was also held in the Abu Chiaba Mohamed vs Mohamed Bakari
(2005) eKLR where it was said that:

 "the truth of the matter is that personal service remains the best
form of service in all areas of litigation and to say that Members of
parliament are a different breed of people and different rules must
apply to them as opposed to those applicable to other Kenyans cannot
support the principle of equality before the law."

 The High Court judge said that the MP had presented a credible and
compelling case that he was indeed at Savannah Restaurant in the
company of an MP colleague at the time he is alleged to have been
served with the election petition papers at his brother's residence.

 He also found that Mr Dolal and Mr Munuve his process server went to
the MPs brother's house in the evening of 25th January, 2008 and found
a watchman at the gate. Upon asking him on the whereabouts of Mr Aden
Bare MP for Dujis Constituency, the watchman said he did not know of
such a person whereupon Mr Munuve the process server dropped the
papers under the gate.

 The court ruled that dropping off court process at the gate of the
MPs brother's house could not constitute "personal service" on the
MP. The court held that the petition was not served on the Member of
Parliament within the period of time prescribed by law and therefore
struck out the petition.

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<http://kenyalaw.org/Downloads_FreeCases/Election_Petition_No_28_of_2008_(2).pdf>