Introduction
1. The petition dated 9 th October 2025 is supported by the petitioner’s affidavit in support of even date.
2. The petition challenges the elections of the membership of the Law of Society of Kenya (LSK) Council, LSK male representative to the Judicial Service Commission (JSC) and the Advocates Dispute Tribunal (ADT) conducted by the Independent Electoral and Boundaries Commission (IEBC) on 5/03/2024 for lack of mandatory constitutional prescription requiring such elections to be carried out and for lack of Commissioners in office at the material time.
3. Consequently, the Petitioner seeks the following reliefs:-
i. Declarations to the effect that: -
a) IEBC could not in the absence of Commissioners in office at the material time, lawfully conduct or supervise elections for members of LSK Council, its man representative to the JSC and its representatives to the ADT.
b) IEBC could not, in the absence of an Act of Parliament prescribing its involvement, lawfully conduct or supervise elections for members of LSK Council and its representatives to the ADT.
c) The respondents failed to discharge their individual and collective obligations to respect, uphold and defend the Constitution in the manner and processes that led to the said election of the 3 rd to 22 nd respondents as members of the LSK Council, LSK man representative to JSC and LSK representative to the ADT.
d) Invalidate elections of the 3 rd to 22 nd respondents as members of the LSK Council, the man representative of the LSK in the JSC and LSK representatives in the ADT.
e) Invalidate decisions made individually as well as collectively, by the 3 rd to 22 nd respondents in their capacities as members of the LSK Council, the man representative of the LSK in the JSC and LSK representatives in the ADT.
f) Directing the 3 rd to 22 nd respondents to refund, and the 23 rd and 24 th respondents and the 3 rd interested party to recover from the 3 rd to 22 nd respondents all funds paid and received as remuneration and/or benefits on account of being elected and holding office as members of the LSK Council, the man representative of the LSK in the JSC and LSK representative in the ADT.
g) Any other orders that commend themselves to this Honourable Court to meet the cause of justice.
4. In opposition to the petition, the 1 st respondent a filed a Replying Affidavit dated 10 th December 2025.
The Petitioner’s Case
5. The petitioner avers that it is a matter of fact that for a period exceeding two years following the exit of its previous Commissioners shortly after the 2022 general election, Independent Electoral and Boundaries Commission (IEBC) had no Commissioners in office which prevailed until 11/07/2025 when a new cohort of Commissioners was duly appointed and sworn into office. On 5/3/2024 IEBC purported to conduct or supervise elections for persons to hold office as members of LSK Council, established under Section 17 LSK Act, for persons to represent LSK in the JSC and ADT pursuant to Article 171(2)(f) of the Constitution and Section 57(1)(c) Advocates Act respectively. The 3 rd to 22 nd respondents were declared to have been elected to office after the claimed elections. Thus, having been elected to their respective offices in contravention of Article 88(4) of the Constitution and the law, the 3 rd to 22 nd respondents hold their respective offices in contravention of the Constitution and the law. Therefore, any decisions they have made while holding those offices individually or collectively, have been made without constitutional and lawful authority rendering the same invalid. Similarly, any remunerations and benefits paid to and received by the 3 rd to 22 nd respondents for their purported duties in the unconstitutional offices were paid and received without any legal authority and are therefore recoverable.
6. The petitioner avers that the LSK Council and the elective positions on the ADT are not elective offices or bodies established by the Constitution but they are established by Section 17, LSK Act and Section 57(1) of the Advocates Act . Therefore, IEBC under Article 88(4) of the Constitution could only be involved in conducting or supervising elections to those offices as prescribed by an Act of Parliament. He further argues that Section 20 of the LSK Act as read together with Regulations 25 and 26 Kenya Law Society (General) Regulations 2020 is not an Act of parliament contemplated by Article 88(4) of the Constitution . Section 20 of the LSK Act merely empowers the LSK Council to propose, and its general meeting to approve, a body to conduct elections to the Council. The provision does not prescribe IEBC as the body responsible for conducting or supervising those elections. Further, the general meeting of LSK has no authority to enact an Act of parliament which power has been delegated to Parliament. Additionally, the regulations anchored in Section 41 LSK Act cannot qualify as the Act of Parliament decreed by Article 88(4) to authorise IEBC to conduct or supervise election of members to the LSK Council.
7. The petitioner contrasts Section 20 of the LSK Act with Section 31(2) of the Elections Act which prescribes IEBC as the body to conduct and supervise the nomination of candidates by political parties for presidential, parliamentary or county elections in accordance with Article 88 of the Constitution. Section 20 of the LSK Act makes no such prescription. Consequently, IEBC has no constitutional or statutory authority to be involved in conducting and supervising elections for members of LSK Council. As to the election of persons contemplated by Section 57(1) of the Advocates Act , nothing either in that Act, the LSK Act or any other Act of Parliament makes any provision for IEBC to conduct and supervise those elections. Thus, in the absence of any constitutional or legislative authority, IEBC, LSK and the respondents could not lawfully be involved in the claimed election of persons to the positions provided under Section 57(1)(c) of the Advocates Act . Their involvement in the claimed elections that led to the election of persons to those positions as therefore a violation of Articles 1(1) and (2), 2(2), 3(1), 10(2)(a) and 88(4) of the Constitution and Section 4(b) of the LSK Act . They acted without any constitutional or statutory authority thereby rendering their acts invalid under Article 2(4) of the Constitution.
8. The petitioner asserts that IEBC, LSK and the respondents further violated Articles 1(1 & 2), 2(2 & 4), 93, 94(1) & (5) and 249(1) of the Constitution by purporting to determine how the elections required under Section 57(1)(c) of the Advocates Act shall be conducted and supervised. The said power remains collectively with the people of Kenya until it is otherwise delegated in accordance with the Constitution. Further, he states that the claimed elections to the LSK Council, JSC and ADT were all conducted and supervised during a period where there were no IEBC commissioners in violation of Articles 88(4) and 250(1) of the Constitution .
The 1 st Respondent’s Case.
9. The affidavit was sworn by Chrispine Owiye, the Director of legal Services of the 1 st respondent. Pursuant to Articles 88, 248 and 249 of the Constitution , the IEBC is not only mandated to supervise and conduct general elections and by elections but also to conduct or supervise referenda and elections to any elective body or office established by the Constitution and any other elections as prescribed by an Act of Parliament. He avers that the 2 nd respondent, the Law Society of Kenya (LSK) is established by the LSK Act and hence fits the description of any elective body established by an Act of Parliament. Therefore, the IEBC can competently conduct and supervise the elections of the Law Society of Kenya as mandated by Article 88(4) of the Constitution . Further in conducting and supervising elections, such as those of the LSK, the IEBC is engendering and promoting constitutionalism as envisaged in Article 249(1)(c) of the Constitution since it is the body endowed with competencies and resources to conduct and supervise free and fair elections.
10. The deponent argues that the absence of the IEBC Commissioners does not automatically render the IEBC comatose or dysfunctional since the IEBC by dint of Section 13 of the IEBC Act is a body corporate with perpetual succession and a common seal. He further argues that in the pleaded grievances precipitating the instant petition, the IEBC was not conducting a general election or a by election which would have required it to comply with the procedure set out in Sections 16 and 19 of the Elections Act . For the IEBC to comply with the stated procedure in the conduct of elections and by elections governed by the Elections Act, which entails utilization of substantial public funds, a policy decision of the commission requiring the commissioners to be in office is mandatory. On the contrary, he asserts that when conducting elections for and behalf of bodies such as the LSK, the IEBC purely exercises administrative duties and does not incur any public funds because the entity at whose behest the IEBC undertakes the elections shoulders all the attendant expenses. The engagements are purely contractual and administratively within the sphere of the secretariat of the IEBC and are in furtherance of the IEBC’s duty of promoting constitutionalism since it is the body with the requisite expertise and on election matters. As such the deponent avers that the petition lacks merit and should be dismissed with costs.
11. The petition was disposed off by way of written submissions.
Petitioner’s Submissions
12. The petitioner maintained that the 1 st respondent may only conduct or supervise elections to offices, other than those established by the constitution, pursuant to express powers to conduct or supervise such elections, as donated by an Act of Parliament. The 1 st respondent does not have a blanket power to conduct elections to any elective body or office established by an Act of Parliament. Such power must be explicitly donated by an Act of Parliament as evidenced by Section 31(2) of the Elections Act . He argued that there is currently no Act of Parliament that expressly empowers the 1 st respondent to conduct or supervise elections for members of the LSK Council or LSK’s representatives in the Advocates Disciplinary Tribunal (ADT). Further, Section 20 of the LSK Act merely empowers the LSK Council to propose, for its general meeting preceding such an election, to approve a body to conduct elections to the Council. Approval by the general meeting of the LSK proposed by the LSK Council to conduct elections to the Council is not prescription by an Act of Parliament as contemplated by Article 88(4) of the Constitution . Further, the Kenya Law Society (General) Regulations 2020 are not an act of parliament in accordance with Articles 88(4) and 260 of the Constitution . Additionally, the petitioner submitted that there is no law that authorises the 1 st respondent to be involved in conducting or supervising election of persons to represent LSK in the ADT.
13. The petitioner asserted that if the 1 st respondent has powers to conduct or supervise elections to any elective body or office established by an Act of parliament without more, Section 20 of the LSK Act as read together with regulations 25 and 26 of the Kenya Law Society (General) Regulations 2020 would not have granted the LSK Council the option to propose and its general meeting to approve a body to conduct elections for its council members. Furthermore, Regulation 26(5) of the Regulations , which provides for conditions which may make it unnecessary to appoint an electoral body, would not have been enacted.
14. The petitioner argued that the constitutional role of the 1 st respondent’s secretary and secretariat was set out by the Supreme Court in its Advisory Opinion in Independent Electoral and Boundaries Commission vs Attorney General (Advisory Opinions Application E004 of 2024) [2025] KESC 57 (KLR) where the court was categorical that in the absence of a properly constituted Commission, the 1 st respondent’s secretary and secretariat cannot undertake any of the functions set out in Article 88(4) of the Constitution. He further submitted that the 1 st respondent cannot approbate and reprobate concerning the basis of its involvement in the impugned elections. On the one hand, it cannot claim it had a constitutional and statutory basis to be so involved and on the other hand it cannot claim that elections for persons to serve as members of the LSK Council and the LSK representatives to the ADT were administrative exercises which could be undertaken by its secretariat, notwithstanding the absence of commissioners at the material time. He further submitted that by hiring out its expertise and making its staff available to conduct and supervise elections of persons to the LSK Council and LSK representatives to the ADT, the 1 st respondent was using public funds.
15. The petitioner asserted that the 1 st respondent did not produce any evidence of a contract between itself and the LSK or reimbursement to support its contentions that it did not use public funds. By law, as provided by the Public Audit and Public Finance Management Acts, any money received by the 1 st respondent, whatever its source or for whatever purpose becomes public money. He further submitted that the 1 st respondent provided no defence or explanation how in the absence of its commissioners, it conducted or supervised the election of the LSK male representative in the JSC pursuant to Articles 88(4) and 171(2)(f) of the Constitution . Elections under Article 171(2)(f) of the Constitution being sui generis , are not governed by the Elections Act however they must comply with the Constitution.
16. The petitioner submitted that it is an established matter of law that the 1 st respondent may not undertake any of its functions and powers under Article 88(4) of the Constitution if it does not have at least three commissioners in office at the material time. Further, conductor supervision of any elections by the 1 st respondent is not an administrative function; its is a core function as provided by Article 88(4) of the Constitution .
The 1 st Respondent’s Submissions.
17. The 1 st respondent identified three issues for determination as follows; whether the election complied with the Constitution of Kenya and the applicable statutory and regulatory laws; whether the 1 st respondent could conduct or supervise elections of persons as members of the Law Society of Kenya, Advocates Dispute Tribunal and Judicial Service Commission and whether an election supervised by the 1 st respondent when she does not have commissioners is unconstitutional, illegal and void. On the first issue, the 1 st respondent submitted that it is a constitutional commission established under Article 88(1) of the Constitution with the mandate of conducting and supervising referenda and elections to any elective body as prescribed by the Constitution or an Act of Parliament. Further, the petitioner bears the burden of proving any allegation of electoral breach, misconduct, irregularity or unconstitutionality regarding the elections. Reliance was placed in the case of Gedion Mwangangi Wambua vs IEBC & 2 Others E.P 4 of 2013 where the court reiterated that it is a presumption of law that elections were properly conducted, and the burden is always on the petitioner to prove otherwise. Further reliance wsa placed in the case of Jennifer Shamalla vs Law society of Kenya & 15 Others [2017] KEHC 5885 (KLR) where it was held:-
An election can only be declared invalid if irregularities in the conduct of the elections have been such that it could not be said that the election had been so conducted as to be substantially in accordance with the law or if the irregularities had affected the results. No evidence was tendered to show that irregularities were of such a nature that the results were affected nor was it demonstrated that the results could have been otherwise had the alleged irregularities not been there. Further, no evidence was tendered to demonstrate that the election was conducted so badly that it was not substantially in accordance with the election law, that it was vitiated irrespective of whether or not the result of the election has been affected.
18. Indisputably, the 2 nd respondent gave notification of where and when its elections would be held in accordance with Section 20 of the Law Society of Kenya Act and Regulation 26 of the Law Society of Kenya (General) Regulations 2020. Candidates vying for various seats in the LSK elections on 5/3/2024 were validly nominated upon meeting the pre-requisites in Regulation 29 of the LSK General Regulations 2020.
19. The 1 st respondent asserted that it is one of the independent constitutional commissions set out in Article 248(2) of the Constitution . Further it is established under Article 88 of the Constitution whereby it is mandated to supervise and conduct general elections and by elections and to conduct and supervise referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament. The 2 nd respondent is established by the Law Society of Kenya Act which fits the description of any elective body established by an Act of Parliament. Consequently, the IEBC can competently conduct and supervise elections of the 2 nd respondent as mandated by Article 88(4) of the Constitution . The 1 st respondent urged the court to interpret the constitution in a manner that reflects the values and aspirations of the people of Kenya with a view of promoting and protecting the purpose, effect and intents of the Constitution as well as the huge expectation placed on it to act independently while conducting free and fair polls.
20. Whilst relying on Section 8 and 13 of the IEBC Act , the 1 st respondent contended that in contracting with third parties such as the 2 nd respondent to oversee and conduct their elections as per their Act and Regulations 2020, it does so pursuant to the provisions of Section 13(1)(c) of the IEBC Act . The Judicial Service Commission is established under Article 171 of the Constitution and Article 171(2)(f) provides for one man and one woman advocate, each with at least fifteen years’ experience to represent the Law Society of Kenya. The process of filling the said positions is an election to a constitutional office and by virtue of Article 88(4), the 1 st respondent submitted that it is the organ vested with the constitutional responsibility to conduct or supervise elections to any elective body or office established by the constitution. The Advocates Dispute Tribunal is established under Section 57 of the Advocates Act and members of the tribunal including advocates elected or nominated through LSK hold office under a statutory framework enacted by Parliament. The 1 st respondent maintained that elections to such a statutory tribunal fall squarely within Article 88(4) which extends its mandate to any elections as prescribed by an Act of Parliament. Where an Act of Parliament or the regulations made thereunder prescribe an elective process such as the LSK Act and Regulations 2020, its involvement in conducting or supervising the election is constitutionally anchored. It is also consistent with the mandate of independent commissions under Article 249 of the Constitution to secure democratic values and promote constitutionalism in all public elective processes.
21. On the final issue, the 1 st respondent argued that the absence of its commissioners did not automatically render it comatose or dysfunctional. By dint of Section 13 of the IEBC Act , it is a body corporate with perpetual succession and a common seal. Furthermore, the 2 nd respondents elections are an administrative issue that does not involve the commissioners directly because Sections 10 and 11 of the IEBC Act, it is the commission’s secretariat which conducts elections while the commissioners’ role is oversight. Reliance was placed in the case of Al Ghurair Printing and Publishing LLC vs Coalition for Reforms and Democracy & 2 Others [2017] eKLR where the court held:-
Section 11A of the IEBC Act sets out the relationship between the commissioners and the secretariat. The Chairperson and members of the Commission are responsible for the formulation of policy and strategy of the Commission and oversight. The secretariat performs day to day administrative functions of the commission and implements the policies and strategies formulated by the Commission...I take the view that the secretariat derives its mandate from the Independent Electoral and Boundaries Commission Act.
22. Further reliance was placed in the case of Isaiah Biwott vs Independent Electoral and Boundaries Commission & Another (2018) eKLR where W. A. Okwany J. said this of the 1 st respondent’s functionality following the resignation of four of her commissioners:-
The conduct of elections or by elections is not a matter that arises out of the resolution or decisions made by the Commissioners at a meeting of the Commission but are dictated by the operation of the law following the declaration of vacancies by the Speakers in the election positions that are subject of the elections or by elections. Clearly therefore, the mere fact that there are vacancies in the Commission does not mean that the Commission becomes unconstitutional and by extension, the mere fact that the appointing authority has not initiated the process of recruiting new commissioners does not mean the commission as presently constituted is not constitutional.
23. The 1 st respondent maintained that it was not conducting a general election or by election which would have required strict adherence to the Elections Act. It was conducting elections in exercise of its administrative duties which does not incur any public funds because the entity at whose behest the 1 st respondent undertakes the election shoulders all the attendant expenses. The engagement is purely contractual and is administratively within its secretariat sphere and is in furtherance of is duty of promoting constitutionalism since it is the body with the requisite expertise on matters to do with elections.
Analysis and Determination
24. Having regard to the pleadings and submissions herein, this Honourable Court distils the following to be the issues for determination:
a) Whether the 1 st Respondent possesses the requisite constitutional and/or statutory authority to conduct and supervise the elections of
I) Council member of the LSK (2 nd Respondent)
II) The Male Representative to the Judiciary Service Commission (JSC)
III) The members of the Advocates Disciplinary Tribunal (ADT).
b) Whether lack of Commissioners in IEBC rendered the said elections unconstitutional and therefore illegal.
c) Whether the 1 st Respondent possesses the requisite constitutional and/or statutory authority to conduct and supervise the elections of Council member of the LSK (1 st Respondent, the Male Representative to the Judiciary Service Commission (JSC) and the members of the Advocates Disciplinary Tribunal (ADT).
25. The Independent Electoral and Boundaries Commission (IEBC), the 1 st Respondent herein, is established under Article 88(1) of the Constitution with the mandate defined under Article 88 (4) as follows:
The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular for-
a) The continuous registration of citizens as voters;
b) The regular revision of the voters’ roll;
c) The delimitation of constituents and wards;
d) The regulation of the process by which parties nominate candidates for elections;
e) The settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
f) The registration of candidates for election;
g) Voter education;
h) The facilitation of the observation, monitoring and evaluation of elections;
i) The regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
j) The development of a code of conduct for candidates and parties contesting elections; and
k) The monitoring of compliance with the legislation required by Article 82(1)(b) relating to the nomination of candidates by parties.
26. The Petitioner maintains that the 1 st respondent may only conduct or supervise elections to offices, other than those established by the Constitution pursuant to express powers donated by an Act of Parliament. The 1 st respondent on the other hand contends that the Court should adopt an interpretation that reflects the values and aspirations of the people of Kenya and which, promotes and protects the purpose, effect and intents of the Constitution. According to the 1 st Respondent, the Law Society of Kenya is established by the Law of Society Kenya Act an therefore falls under the description of any elective body established by an Act of Parliament.
27. The guiding principle in construing the Constitution is specified in Article 259(1) which provides as follows:
This Constitution shall be interpreted in a manner that-
a) Promotes its purposes, values and principles;
b) Advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights;
c) Permits the development of law; and
d) Contributes to good governance.
28. Through constitutional interpretation, courts have developed a rich jurisprudence. The various principles governing constitutional interpretation were aptly summarized by the Court in the case Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika [2024] KEHC 2890 (KLR) as follows:
“111. The developing precedent on constitutional interpretation from the superior courts has now evolved and coalesced as follows;
i. Article 259 of the Constitution as a mandatory principle obliges courts to protect and promote the spirit, purposes, values and principles of the Constitution, advance the rule of Law, Human Rights and fundamental freedoms in the Bill of Rights and contribute to good governance while permitting development of the law.
ii. The Constitution must be construed holistically, liberally, purposively and in a broad manner so as to avoid a narrow and rigid interpretation tainted with legalism.
iii. The Constitution must be interpreted in a contextual manner, that courts are constrained by the language used and so cannot impose a meaning that the text is not reasonably capable of bearing. Furthermore, constitutional interpretation does not favour a formalistic or positivistic approach but a generous construction of the text in order to afford the fullest possible constitutional guarantees.
iv. In considering the purposes, values and principles while interpreting the Constitution, courts must take into account the non-legal phenomena by reflecting on the history of the text.
v. Constitutional interpretation demands that no one provision of the Constitution should be segregated from the others or be considered alone. The provisions are to be interpreted as an integrated whole so as to effectuate the greater purpose of the Constitution.
vi. Where there is an impugned provision in a Statute the same must as much as possible be read in conformity with the Constitution to avoid a clash.
vii. The court ought to examine the object and purpose of the Act (Statute) and if any statutory provision read in its context can reasonably be construed to have more than one meaning the court must prefer the meaning that best promotes the spirit and purposes of the Constitution. See Tinyefuza v Attorney-General Constitution Petition No 1 of 1996 (1997 UGCC 3) and Re Hyundai Motor Distributors (PTY) & others v Social No & others (2000) ZACC 12 2001(1) SA 545.
viii. The principles of interpretation require that the words and expressions used in a statute be interpreted according to their ordinary literal meaning in the statement and in the light of their context. See Adrian Kamotho Njenga v Kenya School of Law (2017) eKLR and Law Society of Kenya v Kenya Revenue Authority & another (2017) eKLR.”
112. When the constitutionality of a statute or provision of a statute is called to question, the court is under obligation to employ the constitutional mirror laying the impugned legislation or provision alongside the article(s) of the constitution and determine whether it meets the constitutional test. The court must also check both the purpose and effect of the Section or the Act, and see whether any of the two could lead to the provision being declared unconstitutional. That is to say, the purpose of a provision or effect thereof, may lead to unconstitutionality of the statute or provision.”
29. In the case of Njoya & 6 Others v Attorney General & another [2004] eKLR the Court frowned upon literal interpretation of the Constitution by stating thus:
Constitutional provisions ought to be interpreted broadly or liberally. Constitutional provisions must be read to give values and aspirations of the people. The Court must appreciate throughout that the constitution, of necessity, has principles and values embodied in it, that a constitution is a living piece of legislation. It is a living document.
30. The Law Society of Kenya Act in Section 3 establishes the Law Society of Kenya as a body corporate with perpetual succession allowing it to perform all la
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1. The petition dated 9 th October 2025 is supported by the petitioner’s affidavit in support of even date.
2. The petition challenges the elections of the membership of the Law of Society of Kenya (LSK) Council, LSK male representative to the Judicial Service Commission (JSC) and the Advocates Dispute Tribunal (ADT) conducted by the Independent Electoral and Boundaries Commission (IEBC) on 5/03/2024 for lack of mandatory constitutional prescription requiring such elections to be carried out and for lack of Commissioners in office at the material time.
3. Consequently, the Petitioner seeks the following reliefs:-
i. Declarations to the effect that: -
a) IEBC could not in the absence of Commissioners in office at the material time, lawfully conduct or supervise elections for members of LSK Council, its man representative to the JSC and its representatives to the ADT.
b) IEBC could not, in the absence of an Act of Parliament prescribing its involvement, lawfully conduct or supervise elections for members of LSK Council and its representatives to the ADT.
c) The respondents failed to discharge their individual and collective obligations to respect, uphold and defend the Constitution in the manner and processes that led to the said election of the 3 rd to 22 nd respondents as members of the LSK Council, LSK man representative to JSC and LSK representative to the ADT.
d) Invalidate elections of the 3 rd to 22 nd respondents as members of the LSK Council, the man representative of the LSK in the JSC and LSK representatives in the ADT.
e) Invalidate decisions made individually as well as collectively, by the 3 rd to 22 nd respondents in their capacities as members of the LSK Council, the man representative of the LSK in the JSC and LSK representatives in the ADT.
f) Directing the 3 rd to 22 nd respondents to refund, and the 23 rd and 24 th respondents and the 3 rd interested party to recover from the 3 rd to 22 nd respondents all funds paid and received as remuneration and/or benefits on account of being elected and holding office as members of the LSK Council, the man representative of the LSK in the JSC and LSK representative in the ADT.
g) Any other orders that commend themselves to this Honourable Court to meet the cause of justice.
4. In opposition to the petition, the 1 st respondent a filed a Replying Affidavit dated 10 th December 2025.
The Petitioner’s Case
5. The petitioner avers that it is a matter of fact that for a period exceeding two years following the exit of its previous Commissioners shortly after the 2022 general election, Independent Electoral and Boundaries Commission (IEBC) had no Commissioners in office which prevailed until 11/07/2025 when a new cohort of Commissioners was duly appointed and sworn into office. On 5/3/2024 IEBC purported to conduct or supervise elections for persons to hold office as members of LSK Council, established under Section 17 LSK Act, for persons to represent LSK in the JSC and ADT pursuant to Article 171(2)(f) of the Constitution and Section 57(1)(c) Advocates Act respectively. The 3 rd to 22 nd respondents were declared to have been elected to office after the claimed elections. Thus, having been elected to their respective offices in contravention of Article 88(4) of the Constitution and the law, the 3 rd to 22 nd respondents hold their respective offices in contravention of the Constitution and the law. Therefore, any decisions they have made while holding those offices individually or collectively, have been made without constitutional and lawful authority rendering the same invalid. Similarly, any remunerations and benefits paid to and received by the 3 rd to 22 nd respondents for their purported duties in the unconstitutional offices were paid and received without any legal authority and are therefore recoverable.
6. The petitioner avers that the LSK Council and the elective positions on the ADT are not elective offices or bodies established by the Constitution but they are established by Section 17, LSK Act and Section 57(1) of the Advocates Act . Therefore, IEBC under Article 88(4) of the Constitution could only be involved in conducting or supervising elections to those offices as prescribed by an Act of Parliament. He further argues that Section 20 of the LSK Act as read together with Regulations 25 and 26 Kenya Law Society (General) Regulations 2020 is not an Act of parliament contemplated by Article 88(4) of the Constitution . Section 20 of the LSK Act merely empowers the LSK Council to propose, and its general meeting to approve, a body to conduct elections to the Council. The provision does not prescribe IEBC as the body responsible for conducting or supervising those elections. Further, the general meeting of LSK has no authority to enact an Act of parliament which power has been delegated to Parliament. Additionally, the regulations anchored in Section 41 LSK Act cannot qualify as the Act of Parliament decreed by Article 88(4) to authorise IEBC to conduct or supervise election of members to the LSK Council.
7. The petitioner contrasts Section 20 of the LSK Act with Section 31(2) of the Elections Act which prescribes IEBC as the body to conduct and supervise the nomination of candidates by political parties for presidential, parliamentary or county elections in accordance with Article 88 of the Constitution. Section 20 of the LSK Act makes no such prescription. Consequently, IEBC has no constitutional or statutory authority to be involved in conducting and supervising elections for members of LSK Council. As to the election of persons contemplated by Section 57(1) of the Advocates Act , nothing either in that Act, the LSK Act or any other Act of Parliament makes any provision for IEBC to conduct and supervise those elections. Thus, in the absence of any constitutional or legislative authority, IEBC, LSK and the respondents could not lawfully be involved in the claimed election of persons to the positions provided under Section 57(1)(c) of the Advocates Act . Their involvement in the claimed elections that led to the election of persons to those positions as therefore a violation of Articles 1(1) and (2), 2(2), 3(1), 10(2)(a) and 88(4) of the Constitution and Section 4(b) of the LSK Act . They acted without any constitutional or statutory authority thereby rendering their acts invalid under Article 2(4) of the Constitution.
8. The petitioner asserts that IEBC, LSK and the respondents further violated Articles 1(1 & 2), 2(2 & 4), 93, 94(1) & (5) and 249(1) of the Constitution by purporting to determine how the elections required under Section 57(1)(c) of the Advocates Act shall be conducted and supervised. The said power remains collectively with the people of Kenya until it is otherwise delegated in accordance with the Constitution. Further, he states that the claimed elections to the LSK Council, JSC and ADT were all conducted and supervised during a period where there were no IEBC commissioners in violation of Articles 88(4) and 250(1) of the Constitution .
The 1 st Respondent’s Case.
9. The affidavit was sworn by Chrispine Owiye, the Director of legal Services of the 1 st respondent. Pursuant to Articles 88, 248 and 249 of the Constitution , the IEBC is not only mandated to supervise and conduct general elections and by elections but also to conduct or supervise referenda and elections to any elective body or office established by the Constitution and any other elections as prescribed by an Act of Parliament. He avers that the 2 nd respondent, the Law Society of Kenya (LSK) is established by the LSK Act and hence fits the description of any elective body established by an Act of Parliament. Therefore, the IEBC can competently conduct and supervise the elections of the Law Society of Kenya as mandated by Article 88(4) of the Constitution . Further in conducting and supervising elections, such as those of the LSK, the IEBC is engendering and promoting constitutionalism as envisaged in Article 249(1)(c) of the Constitution since it is the body endowed with competencies and resources to conduct and supervise free and fair elections.
10. The deponent argues that the absence of the IEBC Commissioners does not automatically render the IEBC comatose or dysfunctional since the IEBC by dint of Section 13 of the IEBC Act is a body corporate with perpetual succession and a common seal. He further argues that in the pleaded grievances precipitating the instant petition, the IEBC was not conducting a general election or a by election which would have required it to comply with the procedure set out in Sections 16 and 19 of the Elections Act . For the IEBC to comply with the stated procedure in the conduct of elections and by elections governed by the Elections Act, which entails utilization of substantial public funds, a policy decision of the commission requiring the commissioners to be in office is mandatory. On the contrary, he asserts that when conducting elections for and behalf of bodies such as the LSK, the IEBC purely exercises administrative duties and does not incur any public funds because the entity at whose behest the IEBC undertakes the elections shoulders all the attendant expenses. The engagements are purely contractual and administratively within the sphere of the secretariat of the IEBC and are in furtherance of the IEBC’s duty of promoting constitutionalism since it is the body with the requisite expertise and on election matters. As such the deponent avers that the petition lacks merit and should be dismissed with costs.
11. The petition was disposed off by way of written submissions.
Petitioner’s Submissions
12. The petitioner maintained that the 1 st respondent may only conduct or supervise elections to offices, other than those established by the constitution, pursuant to express powers to conduct or supervise such elections, as donated by an Act of Parliament. The 1 st respondent does not have a blanket power to conduct elections to any elective body or office established by an Act of Parliament. Such power must be explicitly donated by an Act of Parliament as evidenced by Section 31(2) of the Elections Act . He argued that there is currently no Act of Parliament that expressly empowers the 1 st respondent to conduct or supervise elections for members of the LSK Council or LSK’s representatives in the Advocates Disciplinary Tribunal (ADT). Further, Section 20 of the LSK Act merely empowers the LSK Council to propose, for its general meeting preceding such an election, to approve a body to conduct elections to the Council. Approval by the general meeting of the LSK proposed by the LSK Council to conduct elections to the Council is not prescription by an Act of Parliament as contemplated by Article 88(4) of the Constitution . Further, the Kenya Law Society (General) Regulations 2020 are not an act of parliament in accordance with Articles 88(4) and 260 of the Constitution . Additionally, the petitioner submitted that there is no law that authorises the 1 st respondent to be involved in conducting or supervising election of persons to represent LSK in the ADT.
13. The petitioner asserted that if the 1 st respondent has powers to conduct or supervise elections to any elective body or office established by an Act of parliament without more, Section 20 of the LSK Act as read together with regulations 25 and 26 of the Kenya Law Society (General) Regulations 2020 would not have granted the LSK Council the option to propose and its general meeting to approve a body to conduct elections for its council members. Furthermore, Regulation 26(5) of the Regulations , which provides for conditions which may make it unnecessary to appoint an electoral body, would not have been enacted.
14. The petitioner argued that the constitutional role of the 1 st respondent’s secretary and secretariat was set out by the Supreme Court in its Advisory Opinion in Independent Electoral and Boundaries Commission vs Attorney General (Advisory Opinions Application E004 of 2024) [2025] KESC 57 (KLR) where the court was categorical that in the absence of a properly constituted Commission, the 1 st respondent’s secretary and secretariat cannot undertake any of the functions set out in Article 88(4) of the Constitution. He further submitted that the 1 st respondent cannot approbate and reprobate concerning the basis of its involvement in the impugned elections. On the one hand, it cannot claim it had a constitutional and statutory basis to be so involved and on the other hand it cannot claim that elections for persons to serve as members of the LSK Council and the LSK representatives to the ADT were administrative exercises which could be undertaken by its secretariat, notwithstanding the absence of commissioners at the material time. He further submitted that by hiring out its expertise and making its staff available to conduct and supervise elections of persons to the LSK Council and LSK representatives to the ADT, the 1 st respondent was using public funds.
15. The petitioner asserted that the 1 st respondent did not produce any evidence of a contract between itself and the LSK or reimbursement to support its contentions that it did not use public funds. By law, as provided by the Public Audit and Public Finance Management Acts, any money received by the 1 st respondent, whatever its source or for whatever purpose becomes public money. He further submitted that the 1 st respondent provided no defence or explanation how in the absence of its commissioners, it conducted or supervised the election of the LSK male representative in the JSC pursuant to Articles 88(4) and 171(2)(f) of the Constitution . Elections under Article 171(2)(f) of the Constitution being sui generis , are not governed by the Elections Act however they must comply with the Constitution.
16. The petitioner submitted that it is an established matter of law that the 1 st respondent may not undertake any of its functions and powers under Article 88(4) of the Constitution if it does not have at least three commissioners in office at the material time. Further, conductor supervision of any elections by the 1 st respondent is not an administrative function; its is a core function as provided by Article 88(4) of the Constitution .
The 1 st Respondent’s Submissions.
17. The 1 st respondent identified three issues for determination as follows; whether the election complied with the Constitution of Kenya and the applicable statutory and regulatory laws; whether the 1 st respondent could conduct or supervise elections of persons as members of the Law Society of Kenya, Advocates Dispute Tribunal and Judicial Service Commission and whether an election supervised by the 1 st respondent when she does not have commissioners is unconstitutional, illegal and void. On the first issue, the 1 st respondent submitted that it is a constitutional commission established under Article 88(1) of the Constitution with the mandate of conducting and supervising referenda and elections to any elective body as prescribed by the Constitution or an Act of Parliament. Further, the petitioner bears the burden of proving any allegation of electoral breach, misconduct, irregularity or unconstitutionality regarding the elections. Reliance was placed in the case of Gedion Mwangangi Wambua vs IEBC & 2 Others E.P 4 of 2013 where the court reiterated that it is a presumption of law that elections were properly conducted, and the burden is always on the petitioner to prove otherwise. Further reliance wsa placed in the case of Jennifer Shamalla vs Law society of Kenya & 15 Others [2017] KEHC 5885 (KLR) where it was held:-
An election can only be declared invalid if irregularities in the conduct of the elections have been such that it could not be said that the election had been so conducted as to be substantially in accordance with the law or if the irregularities had affected the results. No evidence was tendered to show that irregularities were of such a nature that the results were affected nor was it demonstrated that the results could have been otherwise had the alleged irregularities not been there. Further, no evidence was tendered to demonstrate that the election was conducted so badly that it was not substantially in accordance with the election law, that it was vitiated irrespective of whether or not the result of the election has been affected.
18. Indisputably, the 2 nd respondent gave notification of where and when its elections would be held in accordance with Section 20 of the Law Society of Kenya Act and Regulation 26 of the Law Society of Kenya (General) Regulations 2020. Candidates vying for various seats in the LSK elections on 5/3/2024 were validly nominated upon meeting the pre-requisites in Regulation 29 of the LSK General Regulations 2020.
19. The 1 st respondent asserted that it is one of the independent constitutional commissions set out in Article 248(2) of the Constitution . Further it is established under Article 88 of the Constitution whereby it is mandated to supervise and conduct general elections and by elections and to conduct and supervise referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament. The 2 nd respondent is established by the Law Society of Kenya Act which fits the description of any elective body established by an Act of Parliament. Consequently, the IEBC can competently conduct and supervise elections of the 2 nd respondent as mandated by Article 88(4) of the Constitution . The 1 st respondent urged the court to interpret the constitution in a manner that reflects the values and aspirations of the people of Kenya with a view of promoting and protecting the purpose, effect and intents of the Constitution as well as the huge expectation placed on it to act independently while conducting free and fair polls.
20. Whilst relying on Section 8 and 13 of the IEBC Act , the 1 st respondent contended that in contracting with third parties such as the 2 nd respondent to oversee and conduct their elections as per their Act and Regulations 2020, it does so pursuant to the provisions of Section 13(1)(c) of the IEBC Act . The Judicial Service Commission is established under Article 171 of the Constitution and Article 171(2)(f) provides for one man and one woman advocate, each with at least fifteen years’ experience to represent the Law Society of Kenya. The process of filling the said positions is an election to a constitutional office and by virtue of Article 88(4), the 1 st respondent submitted that it is the organ vested with the constitutional responsibility to conduct or supervise elections to any elective body or office established by the constitution. The Advocates Dispute Tribunal is established under Section 57 of the Advocates Act and members of the tribunal including advocates elected or nominated through LSK hold office under a statutory framework enacted by Parliament. The 1 st respondent maintained that elections to such a statutory tribunal fall squarely within Article 88(4) which extends its mandate to any elections as prescribed by an Act of Parliament. Where an Act of Parliament or the regulations made thereunder prescribe an elective process such as the LSK Act and Regulations 2020, its involvement in conducting or supervising the election is constitutionally anchored. It is also consistent with the mandate of independent commissions under Article 249 of the Constitution to secure democratic values and promote constitutionalism in all public elective processes.
21. On the final issue, the 1 st respondent argued that the absence of its commissioners did not automatically render it comatose or dysfunctional. By dint of Section 13 of the IEBC Act , it is a body corporate with perpetual succession and a common seal. Furthermore, the 2 nd respondents elections are an administrative issue that does not involve the commissioners directly because Sections 10 and 11 of the IEBC Act, it is the commission’s secretariat which conducts elections while the commissioners’ role is oversight. Reliance was placed in the case of Al Ghurair Printing and Publishing LLC vs Coalition for Reforms and Democracy & 2 Others [2017] eKLR where the court held:-
Section 11A of the IEBC Act sets out the relationship between the commissioners and the secretariat. The Chairperson and members of the Commission are responsible for the formulation of policy and strategy of the Commission and oversight. The secretariat performs day to day administrative functions of the commission and implements the policies and strategies formulated by the Commission...I take the view that the secretariat derives its mandate from the Independent Electoral and Boundaries Commission Act.
22. Further reliance was placed in the case of Isaiah Biwott vs Independent Electoral and Boundaries Commission & Another (2018) eKLR where W. A. Okwany J. said this of the 1 st respondent’s functionality following the resignation of four of her commissioners:-
The conduct of elections or by elections is not a matter that arises out of the resolution or decisions made by the Commissioners at a meeting of the Commission but are dictated by the operation of the law following the declaration of vacancies by the Speakers in the election positions that are subject of the elections or by elections. Clearly therefore, the mere fact that there are vacancies in the Commission does not mean that the Commission becomes unconstitutional and by extension, the mere fact that the appointing authority has not initiated the process of recruiting new commissioners does not mean the commission as presently constituted is not constitutional.
23. The 1 st respondent maintained that it was not conducting a general election or by election which would have required strict adherence to the Elections Act. It was conducting elections in exercise of its administrative duties which does not incur any public funds because the entity at whose behest the 1 st respondent undertakes the election shoulders all the attendant expenses. The engagement is purely contractual and is administratively within its secretariat sphere and is in furtherance of is duty of promoting constitutionalism since it is the body with the requisite expertise on matters to do with elections.
Analysis and Determination
24. Having regard to the pleadings and submissions herein, this Honourable Court distils the following to be the issues for determination:
a) Whether the 1 st Respondent possesses the requisite constitutional and/or statutory authority to conduct and supervise the elections of
I) Council member of the LSK (2 nd Respondent)
II) The Male Representative to the Judiciary Service Commission (JSC)
III) The members of the Advocates Disciplinary Tribunal (ADT).
b) Whether lack of Commissioners in IEBC rendered the said elections unconstitutional and therefore illegal.
c) Whether the 1 st Respondent possesses the requisite constitutional and/or statutory authority to conduct and supervise the elections of Council member of the LSK (1 st Respondent, the Male Representative to the Judiciary Service Commission (JSC) and the members of the Advocates Disciplinary Tribunal (ADT).
25. The Independent Electoral and Boundaries Commission (IEBC), the 1 st Respondent herein, is established under Article 88(1) of the Constitution with the mandate defined under Article 88 (4) as follows:
The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular for-
a) The continuous registration of citizens as voters;
b) The regular revision of the voters’ roll;
c) The delimitation of constituents and wards;
d) The regulation of the process by which parties nominate candidates for elections;
e) The settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
f) The registration of candidates for election;
g) Voter education;
h) The facilitation of the observation, monitoring and evaluation of elections;
i) The regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
j) The development of a code of conduct for candidates and parties contesting elections; and
k) The monitoring of compliance with the legislation required by Article 82(1)(b) relating to the nomination of candidates by parties.
26. The Petitioner maintains that the 1 st respondent may only conduct or supervise elections to offices, other than those established by the Constitution pursuant to express powers donated by an Act of Parliament. The 1 st respondent on the other hand contends that the Court should adopt an interpretation that reflects the values and aspirations of the people of Kenya and which, promotes and protects the purpose, effect and intents of the Constitution. According to the 1 st Respondent, the Law Society of Kenya is established by the Law of Society Kenya Act an therefore falls under the description of any elective body established by an Act of Parliament.
27. The guiding principle in construing the Constitution is specified in Article 259(1) which provides as follows:
This Constitution shall be interpreted in a manner that-
a) Promotes its purposes, values and principles;
b) Advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights;
c) Permits the development of law; and
d) Contributes to good governance.
28. Through constitutional interpretation, courts have developed a rich jurisprudence. The various principles governing constitutional interpretation were aptly summarized by the Court in the case Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika [2024] KEHC 2890 (KLR) as follows:
“111. The developing precedent on constitutional interpretation from the superior courts has now evolved and coalesced as follows;
i. Article 259 of the Constitution as a mandatory principle obliges courts to protect and promote the spirit, purposes, values and principles of the Constitution, advance the rule of Law, Human Rights and fundamental freedoms in the Bill of Rights and contribute to good governance while permitting development of the law.
ii. The Constitution must be construed holistically, liberally, purposively and in a broad manner so as to avoid a narrow and rigid interpretation tainted with legalism.
iii. The Constitution must be interpreted in a contextual manner, that courts are constrained by the language used and so cannot impose a meaning that the text is not reasonably capable of bearing. Furthermore, constitutional interpretation does not favour a formalistic or positivistic approach but a generous construction of the text in order to afford the fullest possible constitutional guarantees.
iv. In considering the purposes, values and principles while interpreting the Constitution, courts must take into account the non-legal phenomena by reflecting on the history of the text.
v. Constitutional interpretation demands that no one provision of the Constitution should be segregated from the others or be considered alone. The provisions are to be interpreted as an integrated whole so as to effectuate the greater purpose of the Constitution.
vi. Where there is an impugned provision in a Statute the same must as much as possible be read in conformity with the Constitution to avoid a clash.
vii. The court ought to examine the object and purpose of the Act (Statute) and if any statutory provision read in its context can reasonably be construed to have more than one meaning the court must prefer the meaning that best promotes the spirit and purposes of the Constitution. See Tinyefuza v Attorney-General Constitution Petition No 1 of 1996 (1997 UGCC 3) and Re Hyundai Motor Distributors (PTY) & others v Social No & others (2000) ZACC 12 2001(1) SA 545.
viii. The principles of interpretation require that the words and expressions used in a statute be interpreted according to their ordinary literal meaning in the statement and in the light of their context. See Adrian Kamotho Njenga v Kenya School of Law (2017) eKLR and Law Society of Kenya v Kenya Revenue Authority & another (2017) eKLR.”
112. When the constitutionality of a statute or provision of a statute is called to question, the court is under obligation to employ the constitutional mirror laying the impugned legislation or provision alongside the article(s) of the constitution and determine whether it meets the constitutional test. The court must also check both the purpose and effect of the Section or the Act, and see whether any of the two could lead to the provision being declared unconstitutional. That is to say, the purpose of a provision or effect thereof, may lead to unconstitutionality of the statute or provision.”
29. In the case of Njoya & 6 Others v Attorney General & another [2004] eKLR the Court frowned upon literal interpretation of the Constitution by stating thus:
Constitutional provisions ought to be interpreted broadly or liberally. Constitutional provisions must be read to give values and aspirations of the people. The Court must appreciate throughout that the constitution, of necessity, has principles and values embodied in it, that a constitution is a living piece of legislation. It is a living document.
30. The Law Society of Kenya Act in Section 3 establishes the Law Society of Kenya as a body corporate with perpetual succession allowing it to perform all la
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