The High Court in Mombasa on Friday nullified the election of Transport Minister and Matuga MP Chirau Ali Mwakwere by holding that the voting exercise in the constituency was not free, fair and transparent.
The judge, Justice Mohammed Ibrahim, in a 93 page ruling, said that Mr Mwakwere was not validly elected as the Matuga MP since breaches of the election rules affected the outcome of the final results.
The minister becomes the third lawmaker to lose his parliamentary seat after Mr Joel Onyancha and Mr Omingo Magara.
After the ruling, the judge directed that a certificate be issued to the Speaker of the National Assembly, and ordered the Interim Independent Electoral Commission (IIEC) to proceed to conduct a by-election as required by law.
Commenting on the outcome of the petition, Mr Mwakwere said that he could not predict the decision of the court as his lawyers did their best to argue the case.
“I will however consult with them on the decision and wait for their direction. I cannot say much for now, as I have to wait for advice from them,” he said.
On his part, the petitioner Ayub Juma Mwakesi said he was grateful to God for the outcome and noted that he was feeling relieved, saying that he had received numerous threats from anonymous people over the petition.
“I also thank the court for the freedom and independence. Had it been in the past, powerful people could have interfered with the trial,” he said.
He said the judgment had served justice to the people of Matuga.
Though Mr Hassan Mohammed Mwanyoha (Orange Democratic Movement) was declared the loser in the December 2007 election, the court said was the legitimate winner.
Mr Mwanyoha said he was happy that justice was delivered.
“I thank God and my supporters who gave me their support and I can now say that justice never fails,” he said.
The case was filed on January 23, 2008 by Mr Mwakesi as an aggrieved voter who sought to nullify the elections on the grounds that they were fraudulent and in breach of the law.
He mainly based his grounds on the fact that the returning officer Mr Ali Maalim cancelled the results of two polling stations, Kombani A and B, in which his candidate Mr Mwanyoha was leading.
Mr Maalim declared Mr Mwakwere the winner with 8,368 votes, while Mr Mwanyoha garnered 8,328 votes, with the exclusion of the votes from the two polling stations. At Kombani A, Mr Mwakwere got 78 votes, while Mr Mwanyoha got 452, and 22 and 100 votes respectively at Kombani B.
But according to evidence adduced in court, the returning officer cancelled the presidential, parliamentary and civic results for both streams on the grounds that they were fraudulent.
However ,an Electoral Commission of Kenya officer who testified during the trial said that the returning officer did not have the legal power to open the envelops of the counted ballots as he could not carry a recount, and therefore did not have the power to cancel the votes in the manner he did.
“I have carefully considered the evidence of the witness and I found it to be credible, honest and clear,” Justice Ibrahim noted.
A simple arithmetic, according to the judge, showed that if the Kombani votes were included, Mr Mwanyoha would have led with 8,880, while Mr Mwakwere would have garnered 8,378 votes, thereby giving a difference of 142 votes.
“I therefore hold that the cancellation of the results as the two streams was unlawful and illegal as the returning officer did not have the power, mandate or jurisdiction to do what he did. It is only the presiding officer who could order and carry out a recount at the polling station of the disputed, spoilt and undisputed votes,” the judge noted.
He added: “I do hold there was non-compliance with the written law and the election was not carried out with the principles laid down in law.”
In the end, Justice Ibrahim noted that the petition was proof that the ECK deserved to be disbanded as it was the mother of all chaos and mayhem that followed the elections in 2007.