Court clears way for swearing-in of IEBC chairperson and commissioners, orders fresh gazette notice

The High Court has paved the way for the swearing-in of the Independent Electoral and Boundaries Commission (IEBC) chairperson and six commissioners.

In a ruling delivered on Thursday, a three-judge bench—comprising Justices Roselyne Aburili, John Chigiti, and Bahati Mwamuye—dismissed a petition filed by Kelvin Roy Omondi and activist Boniface Mwangi.

The petition had sought to block the nominees from assuming office, citing alleged irregularities in the selection process.

“The prayer by the petitioners to declare the seven IEBC nominees illegal, null and void is declined,” the judges ruled, finding that the petition failed to meet the threshold required under Articles 22 and 23 of the Constitution.

The bench further noted that there was no evidence to support the allegation that the nominees hail from the same community or region.

“The petitioners did not provide credible proof that the selection lacked regional balance or ethnic diversity,” the judges said.

However, the court faulted President William Ruto’s move to gazette the appointments, terming it unlawful.

The court ruled that the gazette notice, which formalised the appointments, was published despite a valid and subsisting conservatory order issued earlier by Justice Lawrence Mugambi on May 29, 2025.

Justice Mugambi had allowed Parliament to vet the nominees but barred their gazettement or assumption of office pending the hearing and determination of the case.

Breached court orders

In its Thursday ruling, the High Court found that the President’s action breached the court’s orders, rendering the gazette notice null and void.

“The gazette notice issued by the President to formalise the appointments was unlawful as it had been published in violation of a valid and subsisting conservatory order,” the bench ruled.

As a result, while the court upheld the substantive validity of the appointments, it declared that the process remains incomplete until the appointments are regularised.

“The President is, therefore, required to issue a fresh gazette notice to regularise the appointments in compliance with the court’s judgment,” the judges directed.

Once the new notice is published, the chairperson and commissioners can be sworn in by the Chief Justice and formally take office.

The judgment comes as a relief for the nominated IEBC Chairperson, Erastus Edung, whose eligibility had also been challenged in the petition. The court dismissed claims that his nomination violated constitutional provisions.

“The nomination of Mr Edung has not been shown to contravene any section of the Constitution,” the bench held.

In a separate determination, the court also dismissed the petitioners’ request to bar Registrar of Political Parties Ann Nderitu from being appointed as a commissioner.

“The prayer for declaration against Ann Nderitu, that she was at the time of nomination still in office as the Registrar of Political Parties, is hereby declined,” the ruling read.

The court found that the exclusion of a person with a disability from the IEBC nominations was not unconstitutional.

It also dismissed claims that the IEBC selection panel acted unlawfully by issuing an expanded shortlist, ruling that the process did not violate any legal provisions.

Additionally, the bench held that the recommendations of the National Dialogue Committee (NADCO) were not binding in the selection and appointment of IEBC commissioners.

Allegations that one nominee was related to a senior opposition figure were also rejected, with the court stating that such claims had no impact on the legality of the appointment.

While the petition raised valid constitutional issues, the court noted that no adverse orders could be issued since the petitioners failed to include key parties, namely the IEBC Selection Panel, the Parliamentary Service Commission, and the President, who were entitled to be heard.

The latest decision resolves months of legal uncertainty surrounding the reconstitution of the electoral body, setting the stage for the final step in installing new leadership at the IEBC, pending lawful gazettement.