Magarini MP Harrison Kombe loses seat after Supreme Court upholds annulment
Politian Harrison Kombe of ODM.
The Supreme Court on Friday upheld the nullification of the election of Magarini MP Harrison Garama Kombe.
A five-judge bench of the apex court ruled that Mr Stanely Kenga Karisa had met the burden of proof and established that the Constitution and the Electoral Act had not been complied with as ruled by the High Court and the Court of Appeal.
Mr Kenga, a former deputy speaker of the Kilifi County Assembly, contested the seat on President William Ruto's United Democratic Alliance (UDA) party ticket and garnered 11,925 votes against Mr Kombe's 11,946 (ODM), a difference of 21 votes.
“From what we have stated in the previous paragraphs, it should be apparent the 1st respondent (Mr Kenga) was able to prove on a balance of probabilities, non-compliance with the Constitution and electoral law in the manner the 2nd and 3rd (IEBC) respondents conducted the election, especially from the events at Mapimo Youth Polytechnic polling station 1 of 6, where there was unlawful reopening of the ballot box, alteration of forms without countersigning and a recount of votes in the absence of all the agents,” Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko said.
IEBC officials
The judges ruled that the breaking of the box seals, the retrieval of an envelope, the recounting and the recounting of votes at Mapimo Youth Polytechnic polling station by IEBC officials were wrong.
“The breaking of the seals of the ballot box at the tallying centre after the conclusion of voting, the recount and the correction of Form 35A, in our considered view, was not only contrary to the law and settled judicial pronouncements but was also unwarranted,” the judges said.
The people of Magarini constituency will now remain unrepresented, as will those of Banissa in Mandera County, pending the reconstitution of the Independent Electoral and Boundaries Commission (IEBC).
The Banissa parliamentary seat fell vacant following the death of Kulow Hassan.
Mr Kombe's election was nullified by High Court Judge Alfred Mabeya on the grounds that irregularities, including ballot stuffing, had affected the final result.
The decision was upheld by the Court of Appeal before Mr Kombe obtained an injunction allowing him to appeal to the Supreme Court.
But Mr Kombe accused the court of nullifying his victory despite finding that most of the irregularities were minor and did not affect the outcome.
He said the court was sanctioning the punishment of candidates contesting an election for human errors made by the IEBC that did not affect the outcome of the election.
Comeback
Mr Kombe had made a comeback in the 13th Parliament after five years in the political cold.
Mr Kenga alleged that his agents were denied access to four polling stations and that statutory declaration forms were falsified in 12 polling stations.
He also alleged that the number of votes cast in six constituencies was different at two polling stations and that there were cases of vote stuffing and manipulation at four polling stations.
Mr Kenga said the manner in which the electoral body, through its officials at polling stations and collation centres, conducted the elections, counted and collated votes and transmitted results was fraudulent and amounted to muzzling the electorate in Magarini Constituency.
He said IEBC officials altered and stamped Form 35As, thereby inflating the number of voters and transmitting manipulated results with respect to some polling stations.
Electoral laws and regulations
The IEBC and the Returning Officer denied all the allegations, insisting that the Magarini Constituency election was conducted in accordance with Articles 81 and 86 of the Constitution and electoral laws and regulations.
The electoral body said that if there were irregularities, they did not affect the final result and that Mr Kombe was validly elected after securing the highest number of votes.
In his ruling in March last year, Justice Mabeya said he was satisfied that the results shown on Form 35A were falsified and that, as a result, the contents of Form 35B were inevitably inaccurate.
The judge added that the veracity or accuracy of all Forms 35A which were not signed by the candidates or their agents without the presiding officer giving any reason for the omission remained in doubt.
In the court's view, given the narrow margin of 21 votes, these irregularities inexorably pointed to an election that was flawed and the results of which were unreliable.
