Kibwezi MP loses seat after recount of ballot papers

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Mr Patrick Musimba (left) who was declared Kibwezi MP in the March 4 election and former legislator Kalembe Ndile. Photos/FILE  NATION MEDIA GROUP

By BOB ODALO bodalo@ke.nationmedia.com
Posted  Tuesday, July 2   2013 at  20:52

Kibwezi West MP Patrick Musimba Tuesday became the first legislator to lose his seat after an election petition.

Dr Musimba’s fate was sealed after a vote recount ordered by the High Court in Machakos showed that he had lost to former MP Richard Kalembe Ndile.

The recount, which was supervised by the Deputy Registrar of the High Court in Machakos, Ms Jane Makungu, showed that Mr Ndile clinched 16,891 votes and Mr Musimba 16,773.

Mr Ndile had gone to court together with another candidate in the March polls, Ms Caroline Mwelu, who was placed third in the new count with 4,148 votes.

In the petition, Dr Musimba was listed as the first respondent while the Kibwezi returning officer and the Independent Electoral and Boundaries Commission were the second and third respondents respectively.

“In view of the new developments, I have only two options — one, to declare Mr Ndile the winner of the Kibwezi West parliamentary seat, or to direct that a by-election take place,” said High Court judge David Majanja. Although Mr Justice Majanja directed counsels to make submissions next week, experts say this will be a mere formality as the die has been cast for Dr Musimba who contested the polls as an independent candidate.

“There is nothing much for him to expect as the judge has stated that he has two options and no talk of him retaining his seat; it’s a sealed fate,” said Mr James Mulinge, a legal expert.

On Monday, when he noticed that things were not going his way, Dr Musimba objected to the announcement of the new tally, arguing that some 400 votes belonging to him could not be traced.

The returning officer, Mr Noor Gedi, admitted while giving evidence on oath that he entered different results on forms 35 and 36.

Dr Musimba also admitted the existence of two sets of results from the same constituency.

Mr Gedi stunned the court while being examined by lawyer Andrew Makundi after he said he had altered information that he received on form 35 from presiding officers and put new figures on form 36.

In one such instance at Kisingo polling station, the presiding officer indicated on form 35 that Dr Musimba had garnered 60 votes and Mr Ndile 42. But when he transferred the information to form 36, which he used in presenting the official tally, the results read 60 votes for Dr Musimba and only two for Mr Ndile.