Peter Agweli Onalo v Eliakim Ludeki & 2 others [2005] KECA 34 (KLR)
- Court
- Court of Appeal
- Case number
- 34
- Citation
- [2005] KECA 34 (KLR)
- Decided
- 16 December 2005
The petition is struck out as there was no personal service of the petition upon the 2nd respondent within the time prescribed by the National Assembly and Presidential Elections Act.
Facts
The appellant, Peter Leo Agweli Onalo, filed an election petition in the High Court seeking the nullification of the election of Bitta Sauti Raphael Wanjala as the Member of Parliament for Budalangi Constituency. The election was held on 27th December, 2002. The 2nd respondent, Bitta Sauti Raphael Wanjala, was the Returning Officer for the constituency and the Electoral Commission of Kenya was sued as the statutory body conducting the election.
Issues
- Personal service of the petition upon the 2nd respondent
- Validity of the election of the 2nd respondent
Reasoning
The court held that the 2nd respondent was not properly served with the petition, as evidenced by affidavits of service that were not accepted by the court.
Outcome
The appeal is allowed, and the ruling of the learned Judge dated 7th August, 2003 is set aside. The respondent’s notice of motion seeking the striking out of the appellant’s petition is dismissed.
Orders
- The respondent’s notice of motion seeking the striking out of the appellant’s petition is dismissed.
- The appellant will have the costs of this appeal and costs in the superior court.
Authorities cited
Legislation (2)
- National Assembly and Presidential Elections Act (Cap.7 Laws of Kenya)
- Elections Offences Act (Cap.66 Laws of Kenya)
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