High Court Upholds IEBC Appointments But Quashes Gazette Notice Over Legal Violation

The High Court has delivered a split ruling on the contentious petition challenging the appointment of Kenya’s new Independent Electoral and Boundaries Commission (IEBC) leadership, dismissing the main challenge while finding procedural violations in the formalization process.

In a judgement delivered on Thursday night, a three-judge bench comprising Justices Roseline Aburili, John Chigiti and Bahati Mwamuye, the Court rejected the substantive petition that sought to invalidate the appointments of the IEBC Chairperson Erastus Ethekon and Commissioners including Ann Nderitu, Moses Alutalala Mukhwana, Mary Karen Sorobit, Hassan Noor Hassan, Francis Odhiambo Aduol and Fahima Araphat Abdallah.

However, the Court found that the President’s Gazette Notice formalizing these appointments was published unlawfully, in direct violation of a conservatory order that was in effect at the time.

The Court consequently quashed the Gazette Notice, creating a legal paradox where the appointments are deemed valid but remain incomplete due to improper formalization procedures.

Justice ruled that while the selection process and appointments themselves passed legal scrutiny, the procedural breach in publishing the Gazette Notice while under court restraint rendered that specific action unlawful.

The practical effect of this ruling means the appointed IEBC officials cannot yet assume office.

The President must now issue a fresh Gazette Notice that complies with the Court’s judgment before the Chairperson and Commissioners can take their oath of office before the Chief Justice.

This development adds another layer of delay to Kenya’s electoral preparations, as the IEBC has been operating without full leadership since the previous commissioners’ terms ended. The ruling suggests that while the controversy over the appointments themselves has been resolved in favor of the executive, procedural compliance remains paramount in constitutional processes.

Legal experts note that this judgment underscores the judiciary’s role in ensuring that even valid executive actions must follow proper legal procedures, particularly when court orders are in place.

The President’s office has not yet indicated when the fresh Gazette Notice will be issued.