The supreme court has upheld a ruling made by the Court of Appeal and the High court that nullified the election of Magarini Member of Parliament Harrison Garamba Kombe.

In a ruling on Friday, the court held that the decision was made on grounds of massive irregularities which affected the election results.

“The Court finds no error in the determination by the Court of Appeal that the 1st 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 did affect the final result, based separately on both limbs of Section 83 of the Elections Act,” ruled the Supreme Court.

The dispute arose from the August 2022 general elections, where Kombe was declared the winner by a narrow margin of just 21 votes, defeating his closest rival, Kenga Stanley Karisa of the United Democratic Alliance (UDA).

Dissatisfied with the outcome, Karisa filed a petition at the High Court, alleging grave errors, flaws, fraud, illegalities, and irregularities committed by the Independent Electoral and Boundaries Commission (IEBC) during the electoral process.

The Matter is Presented Before the High Court

The High Court agreed with Karisa and nullified Kombe’s election, citing glaring irregularities by the IEBC that affected the results.

Kombe then appealed the High Court’s decision to the Court of Appeal, which upheld the nullification.

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Unsatisfied, Kombe took the matter to the Supreme Court, raising four key issues for determination:

1. Whether the Supreme Court had jurisdiction to entertain the appeal.
2. Whether the Court of Appeal misapplied and misinterpreted Section 83 of the Elections Act.
3. Whether the Court of Appeal misconstrued the standard and burden of proof applicable in an election petition.
4. Who should bear the costs of the appeal.

The Supreme Court’s Judgement

In its judgment delivered on May 31, 2024, the Supreme Court dismissed Kombe’s petition, ruling that the court had jurisdiction to entertain the appeal under Article 163(4)(a) of the Constitution.

The court also found that the test to be applied under Section 83 of the Elections Act is disjunctive, not conjunctive as argued by Kombe.

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The Supreme Court further found no error in the Court of Appeal’s decision that Karisa had met the standard of proof.

The court also awarded costs capped at Ksh 2,000,000 to Karisa, to be paid by Kombe.

“Costs capped at Ksh 2,000,000 are awarded to the 1ª respondent to be paid by the appellant.”

The decision affirms the nullification of Kombe’s election and paves the way for a fresh election in Magarini Constituency.

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