The High Court on Thursday nullified the election of Trade assistant minister Omingo Magara.
Kisii Resident Judge, Mr Justice Daniel Musinga, described the election of Mr Magara as the South Mugirango MP as not being transparent, free and fair.
“The first respondent, James Omingo Magara, was not validly elected as the member of parliament for South Mugirango constituency,” the judge said in his 104 page ruling that he delivered after two and a half hours.
The judge said the election of Mr Magara was marred with glaring anomalies that were in contravention of the provisions of the National Assembly and Presidential Elections Act.
“Considering all the glaring anomalies and taking into account all the incidents of non-compliance with mandatory and important provisions of the law, I have come to the conclusion that the election was not transparent, free and fair,” he said.
The nullification of Mr Magara’s election brings to two the number of parliamentary polls to be cancelled by the High Court in Kisii.
In December last year, Mr Justice Musinga nullified the election of the then Bomachoge MP, Mr Joel Onyancha following a petition. Mr Onyancha lost the seat I the subsequent by-election.
He added that as a result Mr Magara was not validly elected as member parliament for South Mugirango and a certificate to that effect shall be issued and served to the speaker of the National Assembly to declare the South Mugirango seat vacant.
He said the Interim Independent Electoral Commission should proceed and conduct a by-election as required by the law.
Mr Justice Musinga however said that Mr Magara was not found guilty of any election offence.
He directed that the returning officer during the polls, Mr Joseph Sang’anyi Omambia and the Interim Independent Electoral Commission that replaced the disbanded Electoral Commission of Kenya pay costs of the petition.
The judge said observed that failure by some presiding officers to sign and give statutory comments in form 16A was a breach to election regulations.
“There is sufficient evidence that most of the presiding officers failed to sign the vital documents, to the effect that this court cannot say that the election was free and fair,” Justice Musinga observed.
The judge said the consequences of failure by officers to sign electoral documents, included imprisonment to a term of not exceeding a period exceeding five years.
Mr Justice Musinga observed that there was no reason given by returning officer as to why the presiding officers failed to sign the forms.
He said such documents were vital and he did not understand why the presiding officers would not sign form 16A which primary documents I declaring the outcome of an election.
As electoral procedure, Justice Musinga noted that 74 people were assisted to vote in Bokimai but there were no forms of oaths of secrecy of those who assisted them.
“It is a requirement that persons assisting voters have to sign oaths of secrecy but it was unfortunate in this case that was not done,” he said.
The judge said that an attempt to burn a store in Gucha district where election material for the South Mugirango seat were stored was politically motivated.
Mr Justice Musinga said even during the recount and scrutiny of votes a number of anomalies were registered.
He gave the example where although there were 110 polling stations in the constituency the ballot boxes brought for recount were from 107 polling stations.
“In most of the ballot boxes, the ECK aperture seals were either missing or broken,” he said.
He added that there were many cases of incorrect posting from Form 16A to Ford 17A.
“Out of the 107 polling stations whose ballot boxes were available, 31 of them had no forms 16A,” he added.
Mr Manson Oyongo Nyamweya in his petition had called for the nullification of Mr Magara’s election citing various grounds.
They included that the South Mugirango returning officer and the disbanded ECK conducting the election in a manner that was inconsistent with the principles laid down in law and they failed to take any measures to ensure the election was transparent, free and fair.
Mr Nyamweya had also argued that Mr Magara was declared the winner without Ford 17A being completed in his presence and that of his agents contrary to provisions of the National Assembly and Presidential Elections Act.
Mr Nyamweya, said he was happy with the court ruling which he said had given South Mugirango voters another chance to elect an MP of their choice.
Mr Magara said he was ready to face his opponents in a by-election and he was confident of recapturing his seat.
“The courts cannot give somebody leadership and we are going to go back to the electorate to decide on who is best placed to represent them,” he said.
Mr Magara said the decision to nullify his election was a ‘stop gap measure’ as South Mugirango people would still re-elect him.
“What has happened is an attempt by some people to slow down development programmes in south Mugirango but we are confident we are going to prevail,” he said.