THE LAW OF POLITICS OR THE POLITICS OF THE LAW?: An Evaluation of the "Mwai Vs Moi" Rule as to Personal Service of election petition in kenya

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.