Poll officer challenges Matuga case

The Electoral Commission of Kenya has now filed an application, saying that its returning officer who was in charge of Matuga constituency was not personally served with an election petition.
The petition was filed against the officer, Mr Ali Maalim Hassan, together with the Matuga MP.

Diligence

Mr Hassan said the process server who went to serve Mr Chirau Ali Mwakwere and officials at the ECK headquarters did not act with “due diligence” in attempting to serve him personally before opting for substituted service.
He said the notice of presentation of the petition was published in the Daily Nation on January 25, 2008, which was the same day the process server allegedly attempted to effect personal service on him.

Mombasa High Court judge Joseph Sergon Wednesday certified the application as urgent and will be heard on Tuesday next week.
Meanwhile, Mr Mwakwere, the Transport minister, has urged the court to suspend all the proceedings with regards to the petition, pending the determination of an appeal he has filed.
The MP, through his lawyer Alfred Mabeya, told Mr Justice Sergon that unless the proceedings were stayed, then the appeal would be rendered nugatory.

Appealing

Mr Mwakwere is appealing against the court’s ruling that dismissed his application to have the election petition filed against him by an aggrieved voter, Mr Ayub Juma Mwakesi, struck out.
The minister was challenging the mode of service, saying that he was not personally served as is required by the law.

However, the judge dismissed the arguments and noted that the efforts by the server in attempting personal service were an indication that he had tried his best to reach the minister but his efforts were frustrated due to his unavailability.

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Story by EUNICE MACHUHI

Publication Date: 5/22/2008