The election of National Heritage assistant minister Joel Onyancha as Bomachoge MP was nullified by the High Court sitting in Kisii on Friday.
Mr Onyancha, of Ford People, becomes the first MP in the 10th Parliament to lose his seat through a petition. Several petitions are still being heard by various courts in the country.
The court at the same time ordered the Electoral Commission of Kenya to meet the petition costs citing incompetence among its officials who steered the election exercise.
Free and fair
Kisii resident judge Daniel Musinga said the ECK officials abdicated their role in ensuring that the election was free and fair.
Mr Justice Musinga, however, dismissed claims by petitioners that Mr Onyancha used his powers as an assistant minister to influence the provincial administration to campaign for him in the election.
“I dismiss bribery allegations levelled against the respondent on grounds that it is not easy to prove bribery especially when it is done in secret,” Mr Justice Musinga asserted.
He said the returning officer, Mr Tobias Macharia, and district elections coordinator Astariko Atika failed in their responsibility as ECK officials in ensuring that the process went on smoothly.
He singled out the returning officer who he said failed to verify the figures in forms 16A and 17A before presenting them to the ECK headquarters. Mr Simon Ogari and Mr Zephaniah Nyang’wara, went to court to challenge the election of Mr Onyancha.
The petitioners claimed there was massive rigging during the election.
Mr Onyancha, 48, was first elected to Parliament in 2002 and was re-elected in last year’s General Election. Before joining politics he worked with the Teachers Service Commission.
In another case, Ikolomani’s Bonny Khalwale failed to stop a petition challenging his election.
Dismissing an application by the MP, a three-judge bench ruled on Friday that Dr Khalwale was properly served with court papers.
The MP, through a preliminary objection wanted the petition by Mr Bernard Shinali thrown out for lack of personal service.
A judge sitting in Kisumu had ruled that Dr Khalwale was properly served with the court papers at Jomo Kenyatta International Airport on January 26. The MP was not satisfied and appealed against the decision.
Judges R.S.C. Omolo, Samuel Bosire and Joyce Aluoch ruled that the MP was properly served. They said he was served at the airport on his arrival from Kisumu.
At Kisumu, Mr Justice Frederick Ochieng said there was no doubt that the MP was personally served with the petition since he failed to challenge the evidence in two affidavits filed in court by witnesses.
One of the affidavits was filed by Mr Rogers Polycarp Muhinda, a nephew of the MP, while the other was sworn by the process server, Mr Cosmas Mbuvi. But Dr Khalwale denied ever meeting the process server or his nephew at the airport on the said date.
The appellate judges upheld the evidence. The petition, filed by Mr Shinali of Liberal Democratic Movement will now proceed to full hearing.
At the same time, ODM treasurer Omingo Magara also failed to stop his challenger from proceeding with the petition.
Mr Magara wanted to stop Ford People’s Manson Nyamweya’s petition saying he was not served with the petition papers. But judges Emmanuel O’Kubasu, Onyango Otieno and Aluoch said efforts to trace Mr Magara by a court official in a bid to serve him amounted to due diligence.
They said with the violence that rocked Rift Valley and Nyanza in January, it was hard for the process server to locate Mr Magara. The petition will also proceed to full hearing.