The Court of Appeal has revived the Kitutu Masaba election petition saying the trail judge was wrong in striking it out.

In a ruling, three judges agreed that it was erroneous for Justice Mohamed Ibrahim to strike out the petition on claims that the MP- Walter Nyambati- was not served.

According to Justices Philip Tunoi, Philip Waki and Erastus Githinji, the petitioner Mr Justus Omiti, conducted due diligence before serving the MP through newspaper advertisements.

They said with conflicting affidavits filed in court, the judge should have put the process server in the witness box and find out the truth.

Mr Nyambati had maintained that he was not served whereas the process server, John Atielo, filed a sworn statement saying he attempted on several occasions to serve the MP.

In the petition, Mr Omiti who was a voter has named Mr Nyambati, the returning officer Lawrence Ole Sempele and Electoral body as respondents.

No jurisdiction

In moving to the Appellate Court, Mr Omiti said the judge had no jurisdiction to strike out the petition when "there was no prayer identifying by date the petition prayed to be struck out".

The process server said that he made more than five attempts to serve the MP in vain. He explained the difficulties he underwent including the post-election violence which rocked the country in January 2008

Mr Justice Ibrahim, sitting then in Kisii, ruled that the move to serve the MP through an alternative mode of service was premature.

While throwing out the petition, he said there was no evidence before the court of any attempts of personal service before January 17, 2008.

He said the MP had not been served with the petition within the prescribed period or at all.

But the Judges said Justice Ibrahim squandered an opportunity to establish the truth by questioning the process server.

Mr Nyambati of National Labour Party was declared the winner in December 2007 trouncing 32 other candidates. But the voter moved to court saying the election was influenced. Mr Omoti wants a scrutiny and recount of votes and the seat to be nullified. Mr Timothy Bosire of ODM came second in the election.

The petition will now proceed to hearing.