KLR WEEKLY e-NEWSLETTER |
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| Issue 110| Newsletter Archive | Friday 11th June 2010 | |
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HAVING APPEARED IN COURT A PARTY CANNOT CLAIM NON SERVICE OF ELECTION PETITION Dickson Daniel Karaba v John Ngata Gitahi & another [2010] eKLR (www.kenyalaw.org) “….striking out of a petition is outside the inherent jurisdiction of the High Court and it cannot be exercised to aid a party who has not suffered any prejudice or injustice due to the acts or omission of another party” Service of an election petition on the respondent has been a point of contention before the electoral courts in Kenya for a long time. In an election petition hearing, chances are high that the election court will be faced with an application alleging that the respondent was not properly served. A ruling delivered by the High Court in Nairobi deliberated on the consequences of not serving a returning officer. The returning officer alleged that he learnt of the election petition when he went to visit his mother on February 4, 2008 at Kihuyo village, Mukaro Location in Nyeri Municipality where he found the petition was affixed to a window. He stated his place of residence to be King’ong’o estate in Nyeri town and not Kihuyo village. The petitioner, Dickson Karaba, opposed the application. Patrick Gichere Kabui, a process server, swore an affidavit of service where he narrated the chain of events that led him to affix the copy of the petition on the house at Kihuyo village. He explained that because the applicant had not given his physical address, he made inquiries from Nyeri ECK office and later from the locals about the location of the second respondent’s house house. He chose to affix the petition after several futile attempts to locate and serve the second respondent. In a sixty one page ruling, Justice Warsame considered the issue of service, the consequences of personal service and non-service on the returning officer. The court made reference to the several court decisions among the famous case, Kibaki V Moi (no 3) (2008) KLR, where the Court of Appeal consisting of a bench of five judges held that personal service remained the best form of service. Later in Abu chiaba Mohamed V Mohamed Bwana Bakari & 2 Others [2005] eKLR the same court was of the view that where personal service was not possible alternative means of service could be resorted to. Mr. Arusei, the counsel for the 2nd respondent submitted that no personal service was effected as prescribed by the law. On the other hand, it was contended by Mr. Wamae, that although no personal service was effected, it could be inferred from the circumstances in the case. The court held that section 20 (1) (a) and Rule 14 (1) did not provide for a particular mode of service. The court reiterated the Court of Appeal’s finding that the best mode of service was personal service. In the circumstances of this case, the court concluded that second respondent permanently or even for a protracted period stayed away from their home with the intention of obstructing justice. From the evidence before the court it emerged that the petition was filed on January 11, 2008 and on January 23, 2008, the returning officer and the defunct Electoral Commission of Kenya (ECK) filed a notice of appointment of advocates which was accepted on the same day on behalf of the said respondents. Justice Warsame questioned why the advocate would accept instructions on January 23 2008 for a party who was alleging that the petition came to his knowledge on February 4 2008. These were incorrect and dishonest instructions according to the court. Justice Warsame reiterated that only way to know whether a particular document was served personally or otherwise, was through evidence or facts alleging that the said person was served. The court took issue with fact that the basis of the 2nd respondent’s application was based on an affidavit of service sworn by one John Musyoka on February 8, 2008 and not Patrick Gichere Kibui who affixed a copy of the petition to the house. The court did not think it was right to cross examine Patrick Gichere Kibui, since the application did not raise any complaints against the service he affected upon the applicant. The second respondent lacked good faith in raising allegations of not having been personally served. Assuming, that the 2nd respondent was correct in his contention that the service was defective, would the defect have been waived by entering an appearance and by his conduct? In the court’s opinion, where a party enters an unconditional appearance to an action, it would be regarded as an act which waives any irregularities. One aspect that illustrated the 2nd respondent‘s acknowledgement of service was by instructing his lawyers to file notice of appointment. The court stated that the statute and the rules governing the election petitions make no provision to be taken by the failure of the petitioner to serve personally or in cases where the respondent raises an issue of personal service or non service. Further the court said where a party files an unconditional notice of appointment and there being no evidence that he has suffered any prejudice, injury, he could be heard to question the mode of service that was used by the petitioner in serving the petition. “The contention by a party who is before court and who has filed documents in satisfaction of service of a petition that the petition was not served personally within 28 days, is nothing but an abuse of the court process” the court held. In his concluding remarks Justice Warsame stated that striking out of a petition was outside the inherent jurisdiction of the High Court and it could be exercised to aid a party who had not suffered any prejudice or injustice due to the acts or omission of another party. From the circumstances employed by the petitioner and his process server the court inferred that personal service was effected. Accordingly the application was struck out. |
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EVENT LISTING FOR MARCUS EVANS |
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Marcus Evans proudly presents a World Class ‘Best Practices for In-House Legal conference taking place on 5-6 August 2010 in Nairobi Kenya. From this conference you will gain a competitive edge through practical insights into improving the overall functioning of your legal counsel thus enabling your team to compete on a global level. Attend this informative event and gain practical insights into:
This event is supported by the Kenya Law Reports as the Official Media Partner. For more information on participation and registration, please contact Ms. Lee Chew Wan Tel No: +603 2723 6736, Fax No: +603 2723 6699 leec@marcusevanskl.com today! For more information download PDF |
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Vol. CXII- No. 58 Dated, 11th June, 2010 GAZETTE NOTICE No. 6509 APPOINTMENT IN EXERCISE of the powers conferred by sections 231 (1) and 245 (1) of the Local Government Act, the Deputy Prime Minister and Minister for Local Government appoints- Peter K. Nganga, to conduct an extra-ordinary inspection of the accounts and records and to conduct investigations, researches and inquiries into the general administration and financial management of the County Council of Kiambu. Dated the 27th May, 2010. MUSALIA MUDAVADI, ![]() GAZETTE NOTICE NO. 6510 EXTENSION OF VALUATION ROLL IN EXERCISE of the powers conferred by section 3 of the Valuation for Rating Act, the Deputy Prime Minister and Minister for Local Government approves the extension of the Municipal Council of Mombasa Draft Valuation Roll, 1991, for one year. Dated the 9th September, 2009. MUSALIA MUDAVADI, ![]() GAZETTE NOTICE NO. 6511 APPOINTMENT IN EXERCISE of the powers conferred by section 8 (1) of the Meru University College of Science and Technology Order, 2008, the Minister for Higher Education, Science and Technology appoints JAPHETH KITHINJI MAGAMBO (PROF.) to be Principal of the Meru University College of Science and Technology, for a period of five (5) years, with effect from 29th March, 2010. Dated the 26th May, 2010. WILLIAM ARAP RUTO, ![]() GAZETTE NOTICE NO. 6512 APPOINTMENT IN EXERCISE of the powers conferred by section 57 (1) of the National Museums and Heritage Act, the Minister of State for National Heritage and Culture, on recommendation of the National Museums, appoints- ABDALLA ALI AL-AUSSY to be a Heritage Warden, Coast Province, within the meaning for the purposes of the Act. Dated the 31st May, 2010. WILLIAM OLE NTIMAMA, ![]() GAZETTE NOTICE NO. 6513 APPPONTMENT IN EXERCISE of the powers conferred by section 26 (4) of the Public Procurement and Disposal Act, 2005, and second schedule to the Public Procurement and Disposal Regulations, 2006, the District Commissioner, Samburu East District, appoints- Paul Ngunyi – (Chairman) To be members of the Samburu East District Tender Committee. Dated the 26th May, 2010. D.M. NDUTI, ![]() GAZETTE NOTICE NO. 6513 APPOINTMNT IN EXERICSE of the powers conferred by section 26 (4) of the Public Procurement and Disposal Act, 2005, and second schedule to the Public Procurement and Disposal Regulations, 2006, the District Commissioner, Nyahururu District, appoints- David Githinji-(Chairman), to be members of Nyahururu District Tender Committee. Dated the 4th June, 2010. LUCY MULILI, ![]() GAZETTE NOTICE NO. 6515 ADDENDUM IN Gazette Notice Nos. 9182 and 9183 of 2005- Add the plots noted here below:
Inquiries will be held at DO’s Office, Naivasha, on 16th and 17th September, 2010, starting at 9.30 a.m. Z.A. MABEA, ![]() GAZETTE NOTICE NO. 6763 INSPECTION OF VOTERS REGISTER FOR MATUGA CONSTITUENCY AND CIVIC WARDS IT IS notified for general information that compilation of the voter register for Matuga Constituency and all twenty-seven (27) civil wards within the constituencies specified in Gazette Notice No. 5638 of 2010, is complete. The Interim Independent Electoral Commission will display the list of electors (voters) at all registration centers in the Constituency and civic wards. This display will take place from 8th June, 2010 to 7th July, 2010, which is for a period of thirty (30) days. The Commission appeals to the public to inspect these lists which will be at the registration centers during these days from 8.00 a.m. to 1.00 p.m. and from 2.00 p.m to 5.00 p.m. Members of public should inspect (check) the following- (a) That their names are listed in the register if they were duly registered and issued with a voters card; (b) That the registration particulars are correct e.g. spelling and order of names, National I.D. Number, voter’s card number, date of birth etc. must also be correct. (c) That there are no voters in the register who are not qualified to be so registered in the electoral areas or constituency e.g. imported voters, imposters, under-age. (d) That the register does not contain names of person who are known to be dead as at the time of inspection of the Register. When they detect errors or irregularities in the register, the members of the public should report to the Registration Officer in the following ways- (a) in case of an error with their registration particulars, apply for rectification for the registration particulars. The registration officials will be happy to advise any person on any mater he/she may wish to be clarified and on the right procedures. Dated the 7th May, 2010. A.I. HASSAN, ![]() GAZETTE NOTICE NO. 6764 INTENDED DESTRUCTION OF COURT RECORDS IN ACCORDANCE with the Records Disposal (Courts) Rules, Notice is given that three (3) months after the date of publication of this notice, the Senior Resident Magistrate’s Court at Kangema, intends to apply to the Chief Justice, for leave to destroy the records, books and papers of the Senior Resident Magistrate’s Court at Kangema as set out below. Criminal cases 1970-2000 A comprehensive list of all condemned records that qualify to be disposed under the Act can be obtained and perused at the Senior Resident Magistrate’s Court Registry, Kangema. Any person desiring the return of an exhibit in any of the above cases must make his/her claim within the time stipulated in this publication should do so before the expiry of the notice. All exhibits to which no claim is substantiated before the destruction of the records shall, under section 4, be deemed to be part of the records for the purposes of disposal. Dated the 7th May, 2010. D.A. ORIMBA ![]() GAZETTE NOTICE NO 6497 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of a petrol station. The proposed project entails the development of a petrol station which will include a filling area, service bay and tyre centre. The project is located on L.R. No. Ruiru/Mugutha Block I/T.564. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO 6498 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed construction of a tented camp. The proposed project will involve construction of the following;
The proposed site is located on Plot NO. 4510 Kiruya Sheet 26, Murera village, Baariu sub-location, Kawiru location, Ndoleli division, in Igembe North District of Eastern province. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO 6499 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed housing development. The proposed project will comprise a housing estate including a police post, a dispensary, a community centre, a church, a nursery, primary schools, a shopping mall, a five star hotel and a modern golf course. The proposed site of approximately 2,500 acres is located in New Kandara District about 4 kilometers to the North of Thika town in Thika district and lies between the old Muranga Road and Kandara Road. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO 6771 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed implementation of the construction of the Syokimau Housing Scheme. The proposed project intends to establish a residential housing scheme in Syokimau area comprising of a total of 75 units in phase 1 and another 75 units in phase 2 totaling to 150 housing units. The proponent will also sink a borehole and install a jet system for sewer treatment. The proposed project will be located on L.R. Nos. 12715/515 and 516 in Syokimau area, Mlolongo Town/Mavoko The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO 6772 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the reconstruction of Bomet-Litein road (C24). The road cuts across two districts, Bomet and Bureti Districts and branches off from Bomet-Kaplong road B3 at Bomet Town and ends at the junction of Kaplong-Kericho road (C23) near Litein town thus connecting Bomet (district headquarters), Tenwek, Kapkoros, Mogogosiek and Litein (district headquarters) . The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI ![]() SUPPLEMENT No. 31 SUPPLEMENT No. 33 SUPPLEMENT No. 34 SUPPLEMENT No. 35 SUPPLEMENT No. 36 SUPPLEMENT No. 37
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Kenya Law Weekly Issue 110/2010
11 June 2010
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