The High Court dismissed a petition challenging the legality of the selection and nomination of the new Chairperson and Commissioners of the Independent Electoral and Boundaries Commission (IEBC).
The court however quashed their formal appointments for having been made in violation of court orders.
In a ruling delivered by a three-judge bench comprising Lady Justice Roselyne Aburili (presiding), Justice John Chigiti SC, and Justice Bahati Mwamuye found that Gazette Notice No. 7724 and No. 7725, both dated June 10, were published in contravention of interim conservatory orders issued by the court on May 29.
The notices had formally appointed Erastus Edung Etheron as Chairperson of the IEBC and six others as Commissioners.
The court ruled that while the petition lacked merit and failed to demonstrate constitutional or legal violations in the selection and nomination process, the publication of the appointments while interim orders were still in force rendered the gazettement illegal and void.
“The Gazette Notices were published in direct violation of the interim conservatory orders issued by this court on May 29, and are hereby quashed,” the judges ruled.
The petition filed by two Kenyan voters sought to stop the vetting and approval of President William Ruto’s nominees for the positions of chairperson and commissioners of the Independent Electoral and Boundaries Commission (IEBC).
The petition followed the public notification made on May 8, by the Head of Public Service.
It announced the President’s nomination of Erastus Edung Ethekon (Chairperson) and six others, Anne Njeri Nderitu, Moses Alutalala Mukhwana, Mary Karen Sorobit, Hassan Noor Hassan, Francis Odhiambo Aduol, and Fahima Araphat Abdallah for IEBC commissioner roles.
Kelvin Roy Omondi and Boniface Mwangi argued that the selection process was flawed, opaque, and unconstitutional.
They claimed that some names were irregularly added to the shortlist under unclear circumstances, while others lack the necessary qualifications or violated legal and constitutional requirements.
For instance, they alleged that Anne Nderitu remains a state officer, disqualifying her from the role.
Mary Karen Sorobit held a senior position in the Jubilee Party in the past five years, while Hassan Noor Hassan had previously contested for political office.
The petitioners also raised concerns about lack of regional and ethnic balance and exclusion of persons with disabilities.
They also cite alleged failure to consult opposition parties as required under the National Dialogue Committee Report and recent amendments to the IEBC Act.
The petitioners maintained that the integrity of the electoral process is at stake and that public confidence in the IEBC must be preserved.
The court found that the petitioners had failed to prove the allegations and upheld the legality of the selection process.
The judges also ruled that the recommendations of the National Dialogue Committee (NADCO), which the petitioners relied on, did not bind the appointment process.
The judges however clarified that the quashing of the gazette notices did not invalidate the selection or nomination of the seven individuals.
With the dismissal of the petition and lifting of the interim orders, the appointing authority is now at liberty to take fresh constitutional steps to formalize the appointments.
“Overall, the quashing of the gazette Notices appointing the 1st to the 7th interested parties as Chairperson and Commissioners of the IEBC does not invalidate their selection and nomination,” said the judges.
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