The Kenya Government has lost a motion that would have provided for a local tribunal to try suspects of the 2008 post-election violence.
It was was unable to marshal support from Parliament for the Constitution of Kenya Amendment Bill 2009 that would have created a Special Tribunal for Kenya.
A total of 101 MPs voted in favour of the Bill, while 93 MPs voted against it. There was one abstention.
Speaker Marende ruled that according to Standing Orders 61 that provides if the government gains a majority of votes in a division but does not attain 65pc of members (145) and the opposition’s numbers are above 35pc (77), then the motion is lost.
Since the opposition side garnered 93 votes, it means that the motion is lost. However, the government has the option of re-introducing the Bill after six months.
Even the presence of President Kibaki and Prime Minister Raila Odinga in the House to rally support for the Bill could not be enough to see the Bill's passage.
The failure of MPs to pass the Bill has dealt a blow to government to have suspects who masterminded the post-election violence tried in Kenya.
The government had failed to raise the required number of 148 MPs needed to make a constitutional amendment two times.
In the first instance, only 52 MPs were in Parliament when the Bill was brought to vote.
On Tuesday, Leader of Government Business Vice President Kalonzo Musyoka attempt to withdraw the motion was thwarted by Deputy Speaker Farah Maalim, who ruled that it was the House Business Committee that should decide what should be in the Order Paper.
This followed a failed attempt by government to marshall support among its ranks after a meeting of ministers chaired by President Kibaki could not raise enough numbers.
The establishment of the Special Tribunal for Kenya was a recommendation of the Commission of Inquiry into Post Election Violence.
The Commission, chaired by Justice Philip Waki, was formed to investigate the post election violence.
Kenya was rocked by violence after the opposition Orange Democratic Movement (ODM) disputed the results of the presidential election that the Electoral Commission of Kenya declared President Kibaki the winner.
ODM said its candidate Raila Odinga was denied victory through rigging. The violence left at least 1,000 people dead and a further 350,000 others displaced.
President Kibaki and Mr Odinga agreed to share power after peace talks brokered by former UN Secretary General Kofi Annan. Mr Odinga was named Prime Minister in a coalition government.
With the defeat of the motion, the suspects could now face the prospect of facing trial in the International Criminal Court at The Hague.
The Waki report had set a March 1 deadline for the local tribunal to be operational, failure to which the ICC process takes over.
The names of the suspects are contained in a envelope handed to Mr Annan by Justice Waki.