Defence lawyers in the election petition against President Moi are selectively interpreting election rules in their favour, counsel for Opposition Leader Mwai Kibaki said yesterday.

Mr Pheroze Nowrojee said lawyers Bill Inamdar and Mutula Kilonzo, for the President, were interpreting Rule 14 (1) and Section 20 of the Act to support their case, whereas Parliament's intention in amending the rules was different.

He said Parliament had anticipated three modes of service of documents on respondents to meet the purpose of the legislation and be fair to all parties.

He told Judges Emmanuel O'Kubasu, Mbogholi Msagha and Moijo ole Keiwua that personal service of election petition documents on President Moi was not a legal requirement or a practical alternative.

He submitted that it was impossible for a private person to personally serve President Moi because of the heavy security detail around him. Mr Kibaki knew of this impossibility because he had served under the Head of State as vice-president, Mr Nowrojee added.

He said President Moi had not controverted that fact by filing an affidavit showing that he was accessible to personal service.

Mr Nowrojee was submitting in an application by President Moi seeking to strike out the petition because he had not been personally served with the documents as required by the election petition rules.

The lawyer said: "As we know as litigants, Parliament also knows and is aware that it is not possible to serve President Moi personally.... That is why Parliament had allowed alternative residual modes of service, which would safeguard both petitioner and respondent."

Parliament was also aware, when amending the rules and sections, that there were some respondents who would evade service.

Mr Nowrojee also said Rule 14(1) and Section 20(1)(a) of the Act were not in conflict and the rule had not been repealed. He said rules did not say a respondent must be personally served with petition documents.

President Moi's lawyers, Mr Nowrojee said, had only assumed what Parliament's intention was when it amended Section 20. "They cannot do this...Parliament knew Rule 14 was there, but did not touch it in any way."

He said the lawyers' submissions amounted to asking the court to amend Section 20 and insert the words "serve only personally". He said courts could not insert words into statutes.

Every rule, he added, must be given its due weight and effect. He said the lawyers had not proved that Rule 14 had been repealed and, therefore, it remained in force.

He said the purpose of Section 20 was to speedily bring petitions to court, serve respondents and determine them expeditiously.

Lawyer Omesh Kapila appears for the Electoral Commission and its chairman, Mr Samuel Kivuitu.

The hearing resumes on Monday.

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