Senate Minority Leader Moses Wetang’ula on Monday became the senior most politician to lose a seat in a petition.
The High Court ruled that the Bungoma senator’s election was marred by massive irregularities.
And in what could turn out to be costly for the Ford Kenya leader, the court also said claims that he treated voters had been proven beyond doubt.
Section 67 1(a) of the Elections Act states: “A person who commits the offence of personation, treating, undue influence or bribery; commits an offence and is liable on conviction, in the cases specified in paragraph (a), to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both, and in any other case, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years or to both.”
Mr Justice Francis Gikonyo said the petitioner, former Webuye MP Musikari Kombo, had proved that the irregularities were so extensive that it was hard to know who won the March 4 polls.
Mr Justice Gikonyo further said claims that Mr Wetang’ula and Mr Alfred Khang’ati, the Cord candidate for governor, treated voters at the Kenya Red Cross offices were proven beyond reasonable doubt.
Mr Wetang’ula is a member of the Cord alliance summit together with former Prime Minister Raila Odinga and former Vice-President Kalonzo Musyoka.
Soon after the ruling was delivered, Mr Odinga, who was in court with a number of Cord leaders, said they would not appeal the judgment but will instead go to the public to get Mr Wetang’ula re-elected.
Addressing hundreds of Cord supporters in Bungoma Town, he said: “We shall move to the public court. That is the only court that cannot be manipulated.”
Mr Kombo, who left the court soon after the ruling, later said he had been vindicated. He said the people of Bungoma had been given a fresh chance to elect their senator in free and fair elections.
“Justice has been done. The people of Bungoma were denied fair elections and now they have a chance to deal with it,” he said.
Mr Odinga said the ruling was targeted at ensuring the top Cord leadership is out of elective politics.
“They began with me now they have moved to Wetang’ula. We shall not be manipulated by anyone. They are targeting the Cord summit, which has myself, Kalonzo and Wetang’ula,” he said.
Mr Wetang’ula said he was not shocked by the outcome of the petition. However, he expressed confidence that he has the people on his side.
“We shall meet at the ballot and prove everyone wrong,” he said.
Mr Justice Gikonyo said there was non-compliance with the law in the conduct of the elections by IEBC officials.
The elections, he said, were not free, open and properly conducted as stipulated in the Constitution.
In a judgement lasting three hours, the judge said the anomalies in forms 35 cast serious doubt on whether Mr Wetang’ula won the elections.
“The non-compliance with the law affected the results in a substantial manner notwithstanding the margin of votes between Mr Wetang’ula and the petitioner,” he said.
The anomalies in forms 35 included lack of statutory comments, different results for the same polling stations, blank forms 35 in ballot boxes and some stations had missing forms 35.
He pointed out that the errors in forms 35 strike at the heart of the elections hence they substantively affect the outcome of the petition.
The judge said the court was forced to look more into the issues raised in the petition instead of just looking at the margin of votes.
He said the tallying process did not properly capture the results as announced at the polling stations. “Tallying should be done openly and accurately so that the process is verifiable,” he said.
Mr Justice Gikonyo further said a recount ordered by the court in selected polling stations showed multiple irregularities.
He said the recount showed that some people, who were not supposed to vote, had their names crossed in the principal register.
“This was proof that people who were not supposed to vote in the elections were allowed to vote,” he said.
He pointed out that the scrutiny showed that some names were added by hand during the voting.
The judge added that the scrutiny further failed to show how the ballot papers were issued since some counterfoils were missing. He ordered that the three respondents — IEBC, the returning officer and Mr Wetang’ula — share the Sh4 million costs of the petition.
Tongaren MP Eseli Simiyu, whose win had been upheld by the same judge in the morning, said the Cord alliance had suffered an injustice in court.
He claimed that the ruling had been influenced by some forces outside court. “We are ready to look for votes afresh to ensure we reclaim that seat,” he said.
Siaya Senator James Orengo said the IEBC and the Judiciary needed serious reforms.
He pointed out that the two institutions have been manipulated over time and there was a need to put an end to the manipulation.
Security in Bungoma town had been beefed up with officers from the General Service Unit, regular police and administration police intensifying their patrols.
The hearing of the case was characterised with high emotions and drama as each side sought to outdo the other.
In his affidavit, Mr Kombo had cited various grounds ranging from inaccuracies in submission of results from various polling centres by the IEBC officials to intimidation of his agents.
Mr Wetang’ula, Bungoma County returning officer Mr Madahana Mbaya and the Independent Electoral and Boundaries Commission (IEBC) are named as respondents in the petition.
Mr Kombo was seeking the Bungoma Senate seat on a New Ford Kenya party ticket.