| dc.description.abstract | For quite some time, the decision of the five-judge bench/ of the Court
of Appeal of Kenya sitting at Nairobi, delivered on the 10th day of
December 1999 3 has been a ghost that has haunted petitioners,
practitioners and judges of the High Court of Kenya sitting as an
election court alike.
In these Appeals that pitted Mwai Emilio Kibaki as the Appellant
against Daniel Toroltlch Arap Mai, S.M. Kivuitu and the Electoral
Commission of Kenya as Respon d ents (hereinafter referred to as Mwai
Vs Mai), the Court of Appeal found and declared thus:
In the event, we are satisfied the three judqesof the High Court were fully
justified in holding that as the law now stands · . only personal service will
suffice in respect of election petitions filed under Section 20(1)(a) of the Act .
' ·
Following this pronouncement, petitioners have been met by technical
objections on the modes of service that they have employed and many
an election petition have been struck out for non-compliance with the
rule · as to personal service as enunciated in Mwai Vs Mai even on
occasions when the respondents have deliberately avoided service. In
other instances ; the High Court, which falls below the Court of Appeal
in the country'sjudicial hierarchy, has expressed doubts as to the
credibility and legal thrust of the averment that personal service is the
only mode of service recognized under the National Assembly . and Presidential Elections Act and, at some point in time, the High Court
has outrightly rejected the reasoning of the Court of Appeal in Mwai
Vs Moi.
This state of affairs has had the inevitable consequence of
bringing the judicial process, so far as it relates to election petitions,
into disrepute. | en_US |
