Kibwezi West MP Patrick Musimba has become the first legislator to lose an election petition.
A recount, ordered by the High Court in Machakos, indicated that his votes were less than those of former MP Richard Kalembe Ndile.
Deputy Registrar of the High Court Jane Makungu conducted the exercise. Mr Ndile garnered votes 16,891 while Mr Musimba's got 16,773.
The former MP had filed the election petition alongside Ms Caroline Mwelu, who was placed third after the recount with 4148 votes.
Declare Mr Ndile as winner
Those named as respondents were Dr Musimba, Kibwezi returning officer Noor Gedi and the Independent electoral and Boundaries Commission respectively.
“In view of the new developments I have only two options one to declare Mr Ndile as the winner of the Kibwezi West parliamentary seat or to direct that a by-election take place,” High Court Judge Justice David Majanja ruled.
Although the judge directed counsels to make submissions next week, experts see this as a mere formality.
“There is nothing much for him since the judge has stated two options and none talks of him retaining his seat. His fate is sealed,” said Mr James Mulinge, a legal expert.
Recorded different results
On Monday, Dr Musimba had objected to the vote recount order claiming that some 400 votes could not be traced.
During the trial, the returning officer admitted to recording different results in forms 35 and 36.
Dr Musimba reaffirmed his statement citing two sets of results from the same constituency.
Mr Gedi stunned the court when said he could have altered information in the two forms arguing that to err is human and others had made similar mistakes.
Kisingo polling station is one such case where the presiding officer recorded on form 35 that Mr Musimba had garnered 60 votes and Mr Ndile 42 votes.
However, when transferring the same results to Form 36, which is used to present the official tally, he indicated that 60 votes for Mr Musimba and only 2 for Mr Ndile.
In the final constituency tally, Mr Gedi recorded 31,425 and 30860 votes cast for the two candidates.