By Daniel Nzia
Machakos, Kenya: Kibwezi West MP Patrick Musimba has lost his seat. Dr Musimba ran as an independent candidate.
The High Court sitting in Machakos revoked his election following a successful petition by former Kibwezi MP Kalembe Ndile.
“I hereby declare that Dr Patrick Musimba was not validly elected as a Member of National Assembly for Kibwezi West Constituency,”said Justice David Majanja.
Justice Majanja directed that a fresh election be held, adding “the verdict should allow in no uncertain terms the will and voice of Kibwezi West Constituency to be manifestly seen and heard”.
He acknowledged that on the face of it, both Dr Musimba and Kalembe have valid grounds to claim they won the election.
However, Kalembe criticised the judgement arguing the judge ought to have declared him the winner after he emerged victorious during the recount of votes ordered by the same court.
“The court ruling is not fair for Kibwezi people and Kenyans. I should have been decaled the winner in accordance with the new election laws,” the TIP leader said.
He pointed out that everyone was waiting for the court to declare the eventual winner, adding “the court has left many unanswered questions regarding this ruling”.
The former Kibwezi MP wondered whether the court had shared its judgement with Dr Musimba, who he claimed had started campaigning ahead of the verdict.
Kalembe and Ms Caroline Mwelu had moved to court to challenge the election of Musimba as an MP citing electoral malpractices, including inaccurate tallying on Forms 35 and 36.
According to Musimba, the judge said there were 409 missing votes, while the recount revealed that Kalembe was ahead of him with 29 votes.
The judge said he was troubled by the position taken by Independent Electoral and Boundaries Commission (IEBC) in support of Musimba.
He said no explanation had been provided by the electoral body for glaring discrepancies in Forms 35 and 36 despite the fact all the election material remained in its custody after the election was conducted.
“The only appropriate relief in these circumstances is for this court to return the matter back to the people of Kibwezi West Constituency to determine, who will represent them in the National Assembly,” the judge said.
Justice Majanja observed that although Kalembe emerged with the most votes after the recount, the court could not shut her eyes to evidence that could affect authenticity of the ballot.
“Elections are not about simple arithmetic. They are also about embracing standards and values that our Constitution has ordained,” the judge continued.
Justice Majanja ordered IEBC to bear the cost of the petition where Kalembe and Musimba shall get full cost of the suit, which the judge capped at Sh15 million for each party. Ms Mwelu shall get one-third of the cost.
Kalembe’s lawyer Andrew Makundi said they were surprised by the ruling despite their successful petition against the election of Musimba.