Top court ruling opens floor for an ODM, UDA rematch in Magarini

The nullification of the election of Magarini MP Harrison Kombe (ODM) by the Supreme Court has set the ground for Azimio leader Raila Odinga and President William Ruto to fight for control of the Coast region.

Supreme Court judges Mohamed Ibrahim, Smokin Wanjala, Isaac Lenaola and William Ouko ordered that the Independent Electoral and Boundaries Commission should declare the seat vacant.

This was after they affirmed the verdict by Court of Appeal judges Gatembu Kairu, Jessie Lesiit and George Odunga that there were massive electoral malpractices which cast doubts on Kombe’s win.

They observed that there was unlawful reopening of ballot box, alteration of forms without countersigning and a recount of votes in the absence of all the agents and an interchange of results at Mapimo Youth Polytechnic Polling Station one of six.

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The apex court ruled that IEBC and its returning office did not comply with the Constitution and the electoral law.

“We find no error in the determination of the Court of Appeal that the first respondent met the standard of proof thereby discharging the burden of proof and establishing that indeed there was non-compliance with the constitution and the law or that the noted irregularities and illegalities had affected the final result based on both limbs of section 83 of the Election Act,” the bench headed by Justice Ibrahim ruled.

Kombe is an ally of Raila. The man behind his woes is Karisa Kenga who is affiliated with Ruto. The court also ordered Kombe to pay Kenga Sh2 million cost of the case.

The case started at the High Court. Kenga sued Kombe, IEBC, Magarini returning officer Amina Abubakar and Michael Kingi.

In Malindi, Justice Alfred Mabeya cited massive irregularities including ballot stuffing and exchange of votes in the August 9, 2022 poll.

Sham election

Kenga argued that the election was a sham. He said that his agents were denied access to four polling stations and that forms 35A in 12 polling stations were falsified.

In particular, Kenga claimed his agents were locked out of Mjanaheri Primary School polling station, Masheheni Primary School polling station, Mapimo Primary School Streams three and four, and Mapimo Youth Polytechnic Streams two and five.

Kenga also claimed the number of votes cast in six electoral seats in two polling stations were different adding that there were instances of vote padding and manipulation in four polling stations.

Kombe was declared the winner with 11,946 votes against Kenga’s 11,925, a difference of of 21 votes.

IEBC and the returning officer denied the claims. They argued that, the differences in results were attributed to human error adding that no candidate benefited from them. They added that when errors were discovered, they were corrected.