ODM MP who beat rival by only 21 votes loses seat after Supreme Court judgement

The Supreme Court of Kenya has upheld the nullification of the Magarini Constituency election results, affirming the earlier rulings of both the High Court and the Court of Appeal.

This judgment brings to a close a highly contentious electoral dispute that has captured the nation's attention since the general elections of 9th August 2022.

Background of the Case

The election for the Member of the National Assembly for Magarini Constituency in Kilifi County was a closely contested affair.

Harrison Garama Kombe of ODM was declared the winner by a razor-thin margin of 21 votes, securing 11,946 votes against his closest rival, Kenga Stanley Karisa of UDA, who garnered 11,925 votes.

However, the results were immediately challenged by Karisa, who filed a petition in the High Court.

Karisa's petition alleged widespread irregularities, fraud, and illegalities, which he claimed undermined the integrity of the election.

These included the denial of his agents' access to polling stations, falsification of statutory declaration forms, vote padding, and other election offences committed by officials of the Independent Electoral and Boundaries Commission (IEBC).

High Court Ruling

In a judgment delivered on March 3, 2023, the High Court found merit in Karisa's allegations.

The court determined that the election had not been conducted in accordance with the constitution and the law.

The irregularities were deemed substantial enough to affect the election's outcome. As a result, the court nullified the election results and ordered a by-election in Magarini Constituency.

Court of Appeal's Decision

Unhappy with the High Court's ruling, Kombe appealed to the Court of Appeal. However, the appellate court, in a judgment rendered on July 28, 2023, upheld the High Court's decision.

The Court of Appeal concurred that the election was marred by significant irregularities, which compromised its credibility and verifiability.

The court reiterated that the principles enshrined in Articles 81 and 86 of the Constitution, which demand free, fair, transparent, and accountable elections, had been violated.

Supreme Court's Judgement

Undeterred, Kombe moved to the Supreme Court, filing Petition No. E020 of 2023.

The appeal presented several critical questions for determination, including whether the Supreme Court had jurisdiction to entertain the appeal, whether the Court of Appeal misinterpreted Section 83 of the Elections Act, and whether the standard and burden of proof had been misapplied.

On May 31, 2024, the Supreme Court, comprising Justices Ibrahim, Wanjala, Njoki, Lenaola, and Ouko, delivered its judgment.

The court meticulously examined the issues raised and the evidence presented.

In its analysis, the Supreme Court reaffirmed that it had jurisdiction to hear the appeal, as the issues involved the interpretation and application of constitutional provisions.

Key Findings

The Supreme Court upheld the disjunctive interpretation of Section 83 of the Elections Act, as established in previous landmark cases.

This interpretation means that an election can be nullified if it is proven that either the election was not conducted in accordance with constitutional principles or that the non-compliance substantially affected the election results. In this case, both conditions were met.

The court noted that the irregularities identified, including the reopening of ballot boxes and the improper transmission of results, were not mere administrative errors but serious violations that undermined the integrity of the election.

The court also highlighted that the slim margin of 21 votes between the candidates further amplified the impact of these irregularities.

Supreme Courts orders

The Supreme Court issued the following orders:

Appeal Dismissed

The Supreme Court dismissed the appeal filed by Harrison Garama Kombe, effectively upholding the nullification of the Magarini Constituency election results.

Confirmation of Nullification

The Supreme Court confirmed that the election for the Member of the National Assembly for Magarini Constituency was not conducted in accordance with the Constitution and the law, and that the irregularities and non-compliance affected the integrity and outcome of the election.

By-Election Ordered

The court upheld the order for the IEBC to conduct a fresh election in Magarini Constituency. This by-election is to be carried out in accordance with the constitutional and legal requirements to ensure a free, fair, and credible electoral process.

Costs Awarded

The Supreme Court awarded costs to the 1st respondent, Kenga Stanley Karisa.

The appellant, Hon. Harrison Garama Kombe, was ordered to bear the costs incurred by the 1st respondent in both the Court of Appeal and the Supreme Court. The costs were capped at Sh2 million.

Rejection of Preliminary Objection

The court overruled the preliminary objection raised by the 1st respondent regarding the Supreme Court's jurisdiction, affirming that the court had the authority to hear and determine the appeal.