Introduction
“Those who cannot remember the past are condemned to repeat it.”
George Santayana , ‘Reason in Common Sense’ [1905]
The tragic events that followed the announcement of the presidential election results on 30 th December 2007 left an indelible scar on the conscience of our nation. The violence that followed thereafter engulfed large swathes of the Republic, and the upheaval was marked by loss of life, displacement of thousands of people, and the breakdown of public order.
Those most unfortunate events were precipitated, largely, by the perception and allegations that the Electoral Commission of Kenya (ECK) and its Chairperson and Commissioners had failed in their solemn duty to conduct a free, fair and credible election. The social, economic and institutional trauma that followed laid bare the dangers of electoral mismanagement and the fragile nature of public trust in democratic institutions.
We begin this judgment by venturing back to one of the darkest chapters in Kenya’s history because that historical viewpoint provides the context within which the former electoral body was dissolved and a new electoral management body reimagined under the Constitution of Kenya, 2010 as the Independent Electoral and Boundaries Commission (IEBC).
There is perhaps no more of a herculean task or an onerous role within Kenya’s public life than serving as the Chairperson or a Commissioner of the IEBC. Serving in the IEBC is not just another mundane ceremonial or administrative role; it is a solemn and weighty constitutional trust that calls upon the Members of the IEBC to safeguard the most sacred expression of the people’s sovereignty: THE VOTE .
Persons who serve within the IEBC must, therefore, at all times, be guided by the memory of that tragic period in our history and they must commit themselves to embodying the commitment made by the people of Kenya that we shall NEVER as a nation return to those dark days.
The IEBC occupies a unique and constitutionally entrenched role in the sustenance of democratic governance in Kenya. Established under Article 88 (1) of the Constitution, the Commission is mandated to continuously register citizens as voters, regularly revise the voters’ register, delimit constituencies and wards, regulate the process by which parties nominate candidates for elections, settle electoral disputes including those disputes arising from party primaries nominations, register candidates for election, carry out voter education, facilitate election observation and monitoring, regulate campaign financing, develop and enforce a code of conduct for parties and candidates in respect of any election, monitor compliance with legislation relating to elections, delimit electoral units, conduct and supervise referenda and elections to any elective body or office established by the Constitution and to ensure that such elections are free, fair, transparent and credible.
Article 88, upon establishing the Commission, proceeds to provide for the appointment of the Members of the IEBC, and commences with prohibitions of persons who are not eligible for appointment as Members of the Commission at sub-article two.
From the Commission’s constitutional mandate reproduced above, which is not exhaustive, the IEBC is a constitutional commission whose existence and functionality go to the very heart of representative democracy.
In a constitutional order founded on the sovereignty of the people and the rule of law, the integrity of the electoral process is indispensable and non-negotiable. It is through elections that the sovereign will of the people of Kenya is periodically expressed and government authority legitimately renewed. The IEBC is the primary guarantor of this foundational process.
The Constitution envisages and demands an electoral body that is independent, neutral, efficient and accountable, as underscored in Articles 81 and 86 of the Constitution. These provisions are not aspirational. They are immediate and imperative. The IEBC is under a constitutional and legal obligation to operate, at all times, free from political or partisan control and to serve all Kenyans with impartiality and courage. Its independence is not meant to exist only on paper, it must be real and unimpeachable. The IEBC’s independence is a safeguard for democracy, rule of law, electoral integrity, public confidence and political stability of this country.
The history of electoral disputes in Kenya, particularly the events surrounding the 2007 and 2017 general elections, underscore the far-reaching consequences of public mistrust in the electoral process. As highlighted in the Kriegler Report and later reinforced by the Supreme Court's annulment of the initial 2017 presidential election results, institutional failures or perceived partiality by the IEBC can precipitate a constitutional crisis, civil unrest, and the erosion of state legitimacy.
As the institutional embodiment of the people’s democratic right to choose their leaders in a free and fair contest, the IEBC’s competence, independence and preparedness directly influence electoral legitimacy, peaceful transitions of power and the realization of constitutional values such as equality, transparency, accountability and inclusivity.
It is now a well-settled principle of democratic governance that elections are not a one-day event, but a structured and continuous process governed by the Constitution, electoral laws and the values of accountability and legitimacy.
This understanding was strongly underscored in the Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007 (the IREC/ Kriegler Report), which Report warned against treating elections as isolated occurrences. The Kriegler Report emphasized that elections are a process not an event and that the credibility of an election begins with the constitution of a credible electoral management body.
The Petition before this Court squarely revolves around the question of the credibility of the IEBC that is proposed to be constituted. Drawing from the lessons of the past, it is beyond dispute that the timely establishment, adequate resourcing and operational autonomy of the IEBC are matters of urgent constitutional priority for this nation. As recommended by the Kriegler Commission and as echoed in the country’s subsequent reform initiatives and proposals, a fully constituted and operational IEBC should be in place at least two years prior to any general election. This allows for proper delimitation of boundaries, voter registration, civic education, procurement of electoral materials, recruitment and training of staff and resolution of pre-election disputes, among other critical functions and milestones.
As we close this introductory part of this judgment, we would be remiss not to mention that it is deeply concerning that, for nearly two years since the expiry of the terms of the former Chairperson and Commissioners, the Commission has operated without a Chairperson and Commissioners. This gap has meant that the IEBC has been unable to conduct some of its critical activities, including the holding of by-elections after the deaths or resignations of elected members of the national or county legislatures.
To neglect or delay the proper constitution of the IEBC is not a procedural lapse. It is a direct affront to the constitutional order and a potential catalyst for electoral illegitimacy and political uncertainty.
In light of the exceptional nature and urgency of the issues presented in this Petition and pursuant to the directions of the Honourable the Chief Justice and President of the Supreme Court of Kenya, this Court has, in recognition of the importance of this matter, set aside other judicial commitments, including the regular cause lists of and the delivery of judgments by the three judges that form this bench; so as to undertake and conclude the hearing and determination of this matter within an expedited timeline.
Accordingly, the Court has heard and determined this Petition within a period of seventeen (17) days from the date of hearing, being 23 rd June 2025, in full fidelity to the constitutional imperative for prompt and efficient resolution of disputes touching on matters of high public importance.
This Petition invites the Court to reflect upon a foundational principle in the architecture of our democratic governance, which is, the right of the citizens of Kenya to participate in free, fair, transparent and credible elections administered by an independent, impartial and competent electoral body.
The social contractual relationship between the people and the State will be a dead letter, unless we have a credible IEBC. The issues raised before this Court are not only of legal concern, but of deep constitutional, historical and public significance; touching on the very legitimacy of the electoral process in the Republic of Kenya.
The Petition
The Petition dated 13 th May 2025 is brought pursuant to Article 22 and Article 258 of the Constitution. It is supported by the affidavit of Kelvin Roy Omondi, the 1 st Petitioner, sworn on 13 th May 2025.
The Petitioners are adult citizens who describe themselves as public interest spirited individuals.
The 1 st Respondent is the principal legal advisor to the National Government and is established under Article 156 under the Constitution.
The 2 nd Respondent is the Head of Public Service, an Office established under Section 8(3) of the National Government Co-ordination Act, Cap 127 Laws of Kenya.
The 3 rd Respondent is the National Assembly, a House of Parliament established under Article 93(1) of the Constitution.
The 1 st to 7 th Interested Parties are the persons nominated to serve as Chairperson (1 st Interested Party) and Commissioners (2 nd to 7 th Interested Parties) of the Independent Electoral and Boundaries Commission (IEBC).
The 8 th Interested Party is a Kenyan adult and who described himself as a public spirited individual.
The Petitioners are aggrieved by the manner in which the 1 st to 7 th Interested Parties were selected and nominated to serve as Chairman and Commissioners of the Independent Electoral and Boundaries Commission. They contend that the process of selection and nomination of the 1 st to 7 th Interested Parties was unconstitutional. Specifically, they allege that: the nominations contravene the Constitution in that they were individually and collectively not representative of Kenya’s diverse communities;
no Person with Disabilities was nominated;
the names were selected without any such prior consultation by the President with the Majority and Minority Leadership of the National Assembly contrary to the National Dialogue Committee Report;
Some of the nominees are constitutionally barred from selection, nomination, and appointment to the IEBC by virtue of having candidates for election within the constitutionally disallowed timeframe, by virtue of having held high office within a political party within the constitutionally disallowed timeframe, or by virtue of holding State or Public Office;
Some of the nominations were not merited as the particular nominees received low scores at the interviews;
Some of the nominations are tainted with bias or the perception of bias;
The selection and nomination processes lacked the requisite standards of public participation, transparency, and accountability; and
The selection and nomination processes were procedurally flawed, as typified by the issuance of a second and expanded shortlist of candidates.
The Petitioners contend that the selections made by the IEBC Selection Panel were not based on merit as some of the candidates did not achieve high scores in the interviews.
Secondly, the Petitioners allege that Mr. Hassan Noor Hassan, the 5 th Interested Party, was never shortlisted for the interviews and was only snuck in through an addendum contrary to the selection and nomination process under the Independent Electoral and Boundaries Commission Act.
Further, the Petitioners state that the nomination of Ms. Mary Karen Sorobit, the 4 th Interested Party, is unconstitutional and unlawful as she was, at the time of her nomination, a member and office bearer of a political party, specifically having served as a County Chairperson of the Jubilee Party within the preceding five years of Elections which were held in August 2022. This, according to the Petitioners, contravenes the express provisions of Article 88(2)(a) of the Constitution, which prohibits the appointment of any person who has, within the preceding five years, held office in a political party.
The Petitioners aver that moreover, the nomination of Ms. Sorobit violates Article 10 of the Constitution, which imposes upon all State organs and public officers the duty to uphold the national values and principles of governance including integrity, transparency and accountability.
The said nomination allegedly offends Article 73(2)(a) of the Constitution, which provides that the guiding principles of leadership and integrity include selection based on personal integrity, competence and suitability.
The Petitioners argue that recent political affiliation of Ms Sorobit undermines public confidence in the independence, neutrality and impartiality required of members of the Independent Electoral and Boundaries Commission.
Lastly, that the process leading to the nomination of Ms Sorobit does not meet the threshold of a fair, open and merit-based process as contemplated under Article 232(1)(g) of the Constitution, which requires transparency and timely, accurate provision of information to the public in matters of public service appointments.
The Petitioners are further aggrieved by the nomination of a proposed Chairperson and a proposed Commissioner both said to hail from the ‘Rift Valley’. The Petitioners say that this contravenes Articles 10, 232 and 250 (3) & (4) of the Constitution, as the Constitution did not anticipate what they term as a composition of the Independent Electoral and Boundaries Commission that would be dominated by a majority of persons from the same region while excluding other regions of the Republic of Kenya.
The Petitioners also lament that the nomination list is unconstitutional and illegal as it failed to include any person with disability, despite one such person having been selected by the IEBC Selection Panel and forwarded to the President of the Republic for consideration.
The Selection Panel is further accused of acting illegally and unconstitutionally contrary to Article 88 (2) of the Constitution in the following instances:
Anne Njeri Nderitu, the 2 nd Interested Party who currently serves as the Registrar of Political Parties, was and still is a State Officer and hence she was and/or is ineligible to apply for or be selected as a nominee to serve as a Commissioner of the Independent Electoral and Boundaries Commission;
Mary Karen Sorobit , the 4 th Interested Party, was and/or is ineligible to apply for or be selected as a nominee to serve as a Commissioner of the Independent Electoral and Boundaries Commission as she was the Executive Director and member of the governing body of the Jubilee Political Party in the last 5 years preceding her selection and nomination;
Hassan Noor Hassan, the 5 th Interested Party, was and/or is ineligible to apply or be selected as a nominee to serve as a Commissioner of the Independent Electoral and Boundaries Commission as he had contested and vied for public office in the 2017 and 2022 General Elections, in Mandera County as a Governor which automatically disqualified him from applying, being shortlisted and being selected as a commissioner of the Independent Electoral and Boundaries Commission; and
The nomination of Erastus Edung Ethekon, the 1 st Interested Party , as the Chairperson of the Independent Electoral and Boundaries Commission is unconstitutional and illegal as his nomination is laced with perception of likelihood of being biased on account of his inclinations and affiliations with Josephat Nanok, the Statehouse Deputy Chief of Staff of the President, which allegedly arise from the 1 st Interested Party having served the said Josephat Nanok as his County Attorney when Josephat Nanok was the Governor of Turkana County; and hence nomination is tainted with political partiality and lack of neutrality contrary to what is required of a Chairperson of IEBC.
Additionally, the Petitioners fault the selection and nomination of the 1 st to 7 th Interested Parties by the President stating that the same was illegal and contrary to Articles 10 and 27 (1) of the Constitution on the requirement for public engagement, participation and consultation as the President did not engage or consult the Majority and Minority Political Parties of the National Assembly prior to making the selection as recommended by the National Dialogue Committee.
According to the Petitioners, the failure of the President and the Selection Panel to publicize the information relating to the performance of the candidates and to publish the IEBC Selection Panel’s Report on the interviews also offended Article 35 of the Constitution.
Furthermore, the Petitioners aver that the subsequent failure by the Selection Panel to avail the information pertaining to the interviews as requested by the Petitioners was a second violation of Article 35 of the Constitution.
The Petition seeks the following reliefs, verbatim :
A DECLARATION does issue to the effect that the nomination and selection of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH, is illegal, null and void and contrary to Articles 10, 232 and 250 (3) & (4) of the Constitution of Kenya, 2010 as read with the provisions of the Independent Electoral and Boundaries Commission Act.
A DECLARATION that the nomination of MR. HASSAN NOOR to the office of Commissioner of the Independent Electoral and Boundaries Commission (IEBC) is unconstitutional, illegal, and invalid for being in contravention of Article 88(2) as read with Article 250(4) of the Constitution of Kenya, 2010, and Section 6(1)(a) of the Independent Electoral and Boundaries Commission Act, 2011, by virtue of the fact that he contested for the position of Governor of Mandera County in the 2022 General Elections, thereby rendering him ineligible for appointment to the Commission having held political office within the prescribed disqualifying period of five years;
A DECLARATION that the recommendation of MS. MARY KAREN SOROBIT for appointment as a member of the Independent Electoral and Boundaries Commission (IEBC) is unconstitutional, unlawful, and invalid for reason that she was, at the time of her nomination, a member and office bearer of the Jubilee Party, contrary to Article 88(2)(a) of the Constitution of Kenya, 2010, and is therefore conflicted and incapable of discharging her duties with the impartiality, independence, and integrity required of a commissioner under Articles 10, 73, and 232 of the Constitution.
A DECLARATION that the recommendation of MS. ANNE NJERI NDERITU for appointment as a member of the Independent Electoral and Boundaries Commission (IEBC) is unconstitutional, unlawful, and invalid for reason that she was, at the time of her nomination, State Officer, contrary to Article 88(2)(b) of the Constitution of Kenya, 2010, and is therefore conflicted and incapable of discharging her duties with the impartiality, independence, and integrity required of a commissioner under Articles 10, 73, and 232 of the Constitution.
AN ORDER OF CERTIORARI be and is hereby issued to quash the decision and/or recommendation of the Selection Panel for the Appointment of Commissioners to the IEBC to nominate Ms. Mary Karen Sorobit for appointment to the said Commission.
A DECLARATION that the nomination of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH for appointment to the Independent Electoral and Boundaries Commission (IEBC) by the Selection Panel is unconstitutional, unlawful, null and void for having been undertaken in a process that failed to comply with the requirements of Articles 10, 73(2)(a), 88(2)(a), and 232(1)(g) and (h) and 250 (3) & (4) of the Constitution of Kenya, 2010.
Pursuant to Article 23 (3) of the Constitution of Kenya, 2010, AN ORDER OF CERTIORARI does issue quashing the decision dated 8TH MAY; 2025 issued by the HEAD OF PUBLIC SERVICE to the effect of nominating ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA
ARAPHAT ABDALLAH as members of the Independent Electoral and Boundaries Commission.
AN ORDER OF PERMANENT INJUNCTION restraining ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH nominated and/or recommended by the Selection Panel for appointment as Commissioners of the Independent Electoral and Boundaries Commission from assuming, occupying, or performing the functions of the office of Commissioner of the Independent Electoral and Boundaries Commission, on grounds of violation of the Constitution, including but not limited to breach of the principles of political neutrality, integrity, and fair administrative action as enshrined under Articles 10, 73, 88(2)(a), 232 and 250 (3) & (4) of the Constitution of Kenya, 2010.
A DECLARATION that the Attorney General failed in their constitutional mandate under Article 156(4) of the Constitution of Kenya, 2010 by neglecting to provide independent, impartial, and sound legal advice to the Executive regarding the nomination of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH Commissioners of the Independent Electoral and Boundaries Commission (IEBC), thereby failing to protect the rule of law and the public interest, as mandated by the Constitution.
Any other or further orders, writs and directions this court considers appropriate and just to grant for the purpose of the enforcement of the Petitioners’ fundamental rights and freedoms.
Responses to the Petition
The 1 st Respondent opposes the Petition dated 13 th May, 2025 through a Preliminary Objection dated 16 th May, 2025 raising the following grounds:
The Petition is non-justiciable on account of having been instituted contrary to the principle of ripeness.
2. The Petitioners has offended the doctrine of exhaustion as they have not exhausted the constitutionally provided remedy before invoking the jurisdiction of the Honourable court
3. That the exercise of jurisdiction by the Honourable court at the stage of the appointment process of Commissioner of an independent constitutional commission would be contrary to the doctrine of separation of powers and would constitute a usurpation of the primary role of the legislature in the approval process.
5. The petition merits dismissal under the constitutional avoidance doctrine
The 1 st Respondent also filed Grounds of Opposition dated 9 th June, 2025 to oppose the Petition on the following grounds, verbatim :
The Petitioners have failed to dislodge the legal presumption of regularity of all executive action in the entire petition; Omnia praesumuntur rite esse acta .
The petition is supported by a defective supporting affidavit that offends the provisions of Order 19 Rule 3 (1) of the Civil Procedure Rules in that the deponent has not confined himself to such facts as he is able of his own knowledge to prove and are contains inadmissible averments.
The annexure marked ‘KRO-2’to the supporting affidavit of Kelvin Roy Omondi constitutes illegally obtained evidence which ought to be struck out.
The Petitioners approbates and reprobates in their averments; on the one hand they aver that they haven’t been furnished with information in respect to the recommendations and scores on the candidates and on the other hand they aver that the selection was not based on merit as some candidates did not achieve high scores in the interviews.
The Petitioners do not disclose the basis of his assertion that one Moses Alutalala Mukhwana got low marks.
The Petitioners fail to appreciate that ‘public service’ is expressly defined in Article 260 of the Constitution as ‘…the collectivity of all individuals, other than State officers, performing a function within a state organ.
The 1 st to 7 th Interested Parties meet the constitutional criteria provided in Article 250 (4) in that they are from diverse ethnic backgrounds and are from different counties as specified in the first schedule to the constitution as provided in Article 6 (1) of the constitution which are the constitutionally prescribed regions.
Article 250 (4) of the Constitution provides for a wholesome consideration of all appointments to all commissions and independent offices, there is no legal basis for the Petitioners’ allegations that it was mandatory for the nomination and appointment of a person with disabilities into the Independent Electoral and Boundaries Commission.
Article 88 (2) of the constitution provides for eligibility for appointment not for nomination.
Article 250 (2) of the Constitution contemplates identification and recommendation, approval by the National Assembly and appointment by the President as distinct steps in the appointment process, the allegations in respect to appointment of state officers is therefore premature.
The allegation that the provisions of Article 88 (2) (a) of the constitution prohibit persons who have vied for the position of Governor is not provided for in the Constitution.
The personal view of an unelected private individual cannot supersede the views of a duly elected constitutional house of representatives as being representative of public perception.
The petition is oblivious to the constitutional prescription of equality before the law and to equal protection of the law as the Petitioners seek to subordinate the fundamental freedoms and rights of the 1 st to 7th Interested Parties to those of the Petitioners.
The allegations of non-participation, non-consultation with minority and majority parties is fallacious as the entire process was specifically subjected to the approval of the very same parties in the August house under Article 250 (2) (b) of the constitution.
The allegations in respect to infringement of Article 35 of the constitution are contradicted by the documents published by the state and made available subsequent to such publication which have been presented before court by the Petitioners.
The Petitioners have not availed of the statutory mechanism for access to information set out in the access to information act contrary to the doctrine of constitutional avoidance.
This Honourable court lacks an appellate jurisdiction over the decision of the President and the National Assembly.
This Honourable court lacks the capacity to determine the polycentric considerations on the merits of appointments of commissioners of independent constitutional commissions.
This Honourable court should exercise deference to the constitutional repository of the functions and decline the Petitioners invitation to undermine the comity that is necessary for the proper function of the constitution’s institutional arrangement.
The 2 nd Respondent opposes the Petition through a Preliminary Objection dated 17 th May, 2025 raising the following grounds, verbatim :
The jurisdiction of this Honourable Court has been wrongly invoked as the issues raised herein shall be subject to vetting and approval by the National Assembly pursuant to Article 250 (2) of the Constitution as read with Section 3 (5) of the First Schedule of the IEBC Act;
The Petition is an attempt to circumvent and usurp the Constitutional and statutory mandate and authority of the National Assembly in the approval of the Chairperson and members of the IEBC;
The Petition offends the findings in Bishop Donald Kisaka Mwawasi v Attorney General & 2 others [2014] KECA 561 (KLR) which confirms that the eligibility of a candidate for a public office is at the time of taking said office and not at nomination.
The 2 nd Respondent also filed Grounds of Opposition dated 9 th June, 2025 to oppose the Petition on the following grounds, verbatim :
The Selection Panel of the IEBC complied with the requisite provisions of the Constitution as read with the First Schedule of the IEBC Act in nominating the 1 st to 7 th Interested Parties as Chairperson and Commissioners of the IEBC.
The allegation that the nominations do not represent Kenya’s diverse communities as it excludes ethnic communities is misconceived noting that the 1 st to 7th Interested Parties, originate from 7 different ethnic communities and 7 different counties.
The allegation that the some of the nominees of the position of Chairperson and Members of the IEBC did not “achieve high scores in the interviews” is nothing short of conjecture as no material evidence has been placed before this Honourable Court to substantiate such allegation.
There exists no Constitutional or Statutory obligation on the Selection Panel to “engage or consult” the Minority/Majority Political Parties at the National Assembly prior to nominating candidates for Chairperson and Members of the IEBC as urged by the Petitioners. The candidates were vetted at the National Assembly according the members of the political parties the opportunity to be “engaged and consulted”.
The 5 th Interested Party was, part of the 111 persons on the shortlist.
The claim by the Petitioners of want of regional b
[...truncated]
“Those who cannot remember the past are condemned to repeat it.”
George Santayana , ‘Reason in Common Sense’ [1905]
The tragic events that followed the announcement of the presidential election results on 30 th December 2007 left an indelible scar on the conscience of our nation. The violence that followed thereafter engulfed large swathes of the Republic, and the upheaval was marked by loss of life, displacement of thousands of people, and the breakdown of public order.
Those most unfortunate events were precipitated, largely, by the perception and allegations that the Electoral Commission of Kenya (ECK) and its Chairperson and Commissioners had failed in their solemn duty to conduct a free, fair and credible election. The social, economic and institutional trauma that followed laid bare the dangers of electoral mismanagement and the fragile nature of public trust in democratic institutions.
We begin this judgment by venturing back to one of the darkest chapters in Kenya’s history because that historical viewpoint provides the context within which the former electoral body was dissolved and a new electoral management body reimagined under the Constitution of Kenya, 2010 as the Independent Electoral and Boundaries Commission (IEBC).
There is perhaps no more of a herculean task or an onerous role within Kenya’s public life than serving as the Chairperson or a Commissioner of the IEBC. Serving in the IEBC is not just another mundane ceremonial or administrative role; it is a solemn and weighty constitutional trust that calls upon the Members of the IEBC to safeguard the most sacred expression of the people’s sovereignty: THE VOTE .
Persons who serve within the IEBC must, therefore, at all times, be guided by the memory of that tragic period in our history and they must commit themselves to embodying the commitment made by the people of Kenya that we shall NEVER as a nation return to those dark days.
The IEBC occupies a unique and constitutionally entrenched role in the sustenance of democratic governance in Kenya. Established under Article 88 (1) of the Constitution, the Commission is mandated to continuously register citizens as voters, regularly revise the voters’ register, delimit constituencies and wards, regulate the process by which parties nominate candidates for elections, settle electoral disputes including those disputes arising from party primaries nominations, register candidates for election, carry out voter education, facilitate election observation and monitoring, regulate campaign financing, develop and enforce a code of conduct for parties and candidates in respect of any election, monitor compliance with legislation relating to elections, delimit electoral units, conduct and supervise referenda and elections to any elective body or office established by the Constitution and to ensure that such elections are free, fair, transparent and credible.
Article 88, upon establishing the Commission, proceeds to provide for the appointment of the Members of the IEBC, and commences with prohibitions of persons who are not eligible for appointment as Members of the Commission at sub-article two.
From the Commission’s constitutional mandate reproduced above, which is not exhaustive, the IEBC is a constitutional commission whose existence and functionality go to the very heart of representative democracy.
In a constitutional order founded on the sovereignty of the people and the rule of law, the integrity of the electoral process is indispensable and non-negotiable. It is through elections that the sovereign will of the people of Kenya is periodically expressed and government authority legitimately renewed. The IEBC is the primary guarantor of this foundational process.
The Constitution envisages and demands an electoral body that is independent, neutral, efficient and accountable, as underscored in Articles 81 and 86 of the Constitution. These provisions are not aspirational. They are immediate and imperative. The IEBC is under a constitutional and legal obligation to operate, at all times, free from political or partisan control and to serve all Kenyans with impartiality and courage. Its independence is not meant to exist only on paper, it must be real and unimpeachable. The IEBC’s independence is a safeguard for democracy, rule of law, electoral integrity, public confidence and political stability of this country.
The history of electoral disputes in Kenya, particularly the events surrounding the 2007 and 2017 general elections, underscore the far-reaching consequences of public mistrust in the electoral process. As highlighted in the Kriegler Report and later reinforced by the Supreme Court's annulment of the initial 2017 presidential election results, institutional failures or perceived partiality by the IEBC can precipitate a constitutional crisis, civil unrest, and the erosion of state legitimacy.
As the institutional embodiment of the people’s democratic right to choose their leaders in a free and fair contest, the IEBC’s competence, independence and preparedness directly influence electoral legitimacy, peaceful transitions of power and the realization of constitutional values such as equality, transparency, accountability and inclusivity.
It is now a well-settled principle of democratic governance that elections are not a one-day event, but a structured and continuous process governed by the Constitution, electoral laws and the values of accountability and legitimacy.
This understanding was strongly underscored in the Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007 (the IREC/ Kriegler Report), which Report warned against treating elections as isolated occurrences. The Kriegler Report emphasized that elections are a process not an event and that the credibility of an election begins with the constitution of a credible electoral management body.
The Petition before this Court squarely revolves around the question of the credibility of the IEBC that is proposed to be constituted. Drawing from the lessons of the past, it is beyond dispute that the timely establishment, adequate resourcing and operational autonomy of the IEBC are matters of urgent constitutional priority for this nation. As recommended by the Kriegler Commission and as echoed in the country’s subsequent reform initiatives and proposals, a fully constituted and operational IEBC should be in place at least two years prior to any general election. This allows for proper delimitation of boundaries, voter registration, civic education, procurement of electoral materials, recruitment and training of staff and resolution of pre-election disputes, among other critical functions and milestones.
As we close this introductory part of this judgment, we would be remiss not to mention that it is deeply concerning that, for nearly two years since the expiry of the terms of the former Chairperson and Commissioners, the Commission has operated without a Chairperson and Commissioners. This gap has meant that the IEBC has been unable to conduct some of its critical activities, including the holding of by-elections after the deaths or resignations of elected members of the national or county legislatures.
To neglect or delay the proper constitution of the IEBC is not a procedural lapse. It is a direct affront to the constitutional order and a potential catalyst for electoral illegitimacy and political uncertainty.
In light of the exceptional nature and urgency of the issues presented in this Petition and pursuant to the directions of the Honourable the Chief Justice and President of the Supreme Court of Kenya, this Court has, in recognition of the importance of this matter, set aside other judicial commitments, including the regular cause lists of and the delivery of judgments by the three judges that form this bench; so as to undertake and conclude the hearing and determination of this matter within an expedited timeline.
Accordingly, the Court has heard and determined this Petition within a period of seventeen (17) days from the date of hearing, being 23 rd June 2025, in full fidelity to the constitutional imperative for prompt and efficient resolution of disputes touching on matters of high public importance.
This Petition invites the Court to reflect upon a foundational principle in the architecture of our democratic governance, which is, the right of the citizens of Kenya to participate in free, fair, transparent and credible elections administered by an independent, impartial and competent electoral body.
The social contractual relationship between the people and the State will be a dead letter, unless we have a credible IEBC. The issues raised before this Court are not only of legal concern, but of deep constitutional, historical and public significance; touching on the very legitimacy of the electoral process in the Republic of Kenya.
The Petition
The Petition dated 13 th May 2025 is brought pursuant to Article 22 and Article 258 of the Constitution. It is supported by the affidavit of Kelvin Roy Omondi, the 1 st Petitioner, sworn on 13 th May 2025.
The Petitioners are adult citizens who describe themselves as public interest spirited individuals.
The 1 st Respondent is the principal legal advisor to the National Government and is established under Article 156 under the Constitution.
The 2 nd Respondent is the Head of Public Service, an Office established under Section 8(3) of the National Government Co-ordination Act, Cap 127 Laws of Kenya.
The 3 rd Respondent is the National Assembly, a House of Parliament established under Article 93(1) of the Constitution.
The 1 st to 7 th Interested Parties are the persons nominated to serve as Chairperson (1 st Interested Party) and Commissioners (2 nd to 7 th Interested Parties) of the Independent Electoral and Boundaries Commission (IEBC).
The 8 th Interested Party is a Kenyan adult and who described himself as a public spirited individual.
The Petitioners are aggrieved by the manner in which the 1 st to 7 th Interested Parties were selected and nominated to serve as Chairman and Commissioners of the Independent Electoral and Boundaries Commission. They contend that the process of selection and nomination of the 1 st to 7 th Interested Parties was unconstitutional. Specifically, they allege that: the nominations contravene the Constitution in that they were individually and collectively not representative of Kenya’s diverse communities;
no Person with Disabilities was nominated;
the names were selected without any such prior consultation by the President with the Majority and Minority Leadership of the National Assembly contrary to the National Dialogue Committee Report;
Some of the nominees are constitutionally barred from selection, nomination, and appointment to the IEBC by virtue of having candidates for election within the constitutionally disallowed timeframe, by virtue of having held high office within a political party within the constitutionally disallowed timeframe, or by virtue of holding State or Public Office;
Some of the nominations were not merited as the particular nominees received low scores at the interviews;
Some of the nominations are tainted with bias or the perception of bias;
The selection and nomination processes lacked the requisite standards of public participation, transparency, and accountability; and
The selection and nomination processes were procedurally flawed, as typified by the issuance of a second and expanded shortlist of candidates.
The Petitioners contend that the selections made by the IEBC Selection Panel were not based on merit as some of the candidates did not achieve high scores in the interviews.
Secondly, the Petitioners allege that Mr. Hassan Noor Hassan, the 5 th Interested Party, was never shortlisted for the interviews and was only snuck in through an addendum contrary to the selection and nomination process under the Independent Electoral and Boundaries Commission Act.
Further, the Petitioners state that the nomination of Ms. Mary Karen Sorobit, the 4 th Interested Party, is unconstitutional and unlawful as she was, at the time of her nomination, a member and office bearer of a political party, specifically having served as a County Chairperson of the Jubilee Party within the preceding five years of Elections which were held in August 2022. This, according to the Petitioners, contravenes the express provisions of Article 88(2)(a) of the Constitution, which prohibits the appointment of any person who has, within the preceding five years, held office in a political party.
The Petitioners aver that moreover, the nomination of Ms. Sorobit violates Article 10 of the Constitution, which imposes upon all State organs and public officers the duty to uphold the national values and principles of governance including integrity, transparency and accountability.
The said nomination allegedly offends Article 73(2)(a) of the Constitution, which provides that the guiding principles of leadership and integrity include selection based on personal integrity, competence and suitability.
The Petitioners argue that recent political affiliation of Ms Sorobit undermines public confidence in the independence, neutrality and impartiality required of members of the Independent Electoral and Boundaries Commission.
Lastly, that the process leading to the nomination of Ms Sorobit does not meet the threshold of a fair, open and merit-based process as contemplated under Article 232(1)(g) of the Constitution, which requires transparency and timely, accurate provision of information to the public in matters of public service appointments.
The Petitioners are further aggrieved by the nomination of a proposed Chairperson and a proposed Commissioner both said to hail from the ‘Rift Valley’. The Petitioners say that this contravenes Articles 10, 232 and 250 (3) & (4) of the Constitution, as the Constitution did not anticipate what they term as a composition of the Independent Electoral and Boundaries Commission that would be dominated by a majority of persons from the same region while excluding other regions of the Republic of Kenya.
The Petitioners also lament that the nomination list is unconstitutional and illegal as it failed to include any person with disability, despite one such person having been selected by the IEBC Selection Panel and forwarded to the President of the Republic for consideration.
The Selection Panel is further accused of acting illegally and unconstitutionally contrary to Article 88 (2) of the Constitution in the following instances:
Anne Njeri Nderitu, the 2 nd Interested Party who currently serves as the Registrar of Political Parties, was and still is a State Officer and hence she was and/or is ineligible to apply for or be selected as a nominee to serve as a Commissioner of the Independent Electoral and Boundaries Commission;
Mary Karen Sorobit , the 4 th Interested Party, was and/or is ineligible to apply for or be selected as a nominee to serve as a Commissioner of the Independent Electoral and Boundaries Commission as she was the Executive Director and member of the governing body of the Jubilee Political Party in the last 5 years preceding her selection and nomination;
Hassan Noor Hassan, the 5 th Interested Party, was and/or is ineligible to apply or be selected as a nominee to serve as a Commissioner of the Independent Electoral and Boundaries Commission as he had contested and vied for public office in the 2017 and 2022 General Elections, in Mandera County as a Governor which automatically disqualified him from applying, being shortlisted and being selected as a commissioner of the Independent Electoral and Boundaries Commission; and
The nomination of Erastus Edung Ethekon, the 1 st Interested Party , as the Chairperson of the Independent Electoral and Boundaries Commission is unconstitutional and illegal as his nomination is laced with perception of likelihood of being biased on account of his inclinations and affiliations with Josephat Nanok, the Statehouse Deputy Chief of Staff of the President, which allegedly arise from the 1 st Interested Party having served the said Josephat Nanok as his County Attorney when Josephat Nanok was the Governor of Turkana County; and hence nomination is tainted with political partiality and lack of neutrality contrary to what is required of a Chairperson of IEBC.
Additionally, the Petitioners fault the selection and nomination of the 1 st to 7 th Interested Parties by the President stating that the same was illegal and contrary to Articles 10 and 27 (1) of the Constitution on the requirement for public engagement, participation and consultation as the President did not engage or consult the Majority and Minority Political Parties of the National Assembly prior to making the selection as recommended by the National Dialogue Committee.
According to the Petitioners, the failure of the President and the Selection Panel to publicize the information relating to the performance of the candidates and to publish the IEBC Selection Panel’s Report on the interviews also offended Article 35 of the Constitution.
Furthermore, the Petitioners aver that the subsequent failure by the Selection Panel to avail the information pertaining to the interviews as requested by the Petitioners was a second violation of Article 35 of the Constitution.
The Petition seeks the following reliefs, verbatim :
A DECLARATION does issue to the effect that the nomination and selection of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH, is illegal, null and void and contrary to Articles 10, 232 and 250 (3) & (4) of the Constitution of Kenya, 2010 as read with the provisions of the Independent Electoral and Boundaries Commission Act.
A DECLARATION that the nomination of MR. HASSAN NOOR to the office of Commissioner of the Independent Electoral and Boundaries Commission (IEBC) is unconstitutional, illegal, and invalid for being in contravention of Article 88(2) as read with Article 250(4) of the Constitution of Kenya, 2010, and Section 6(1)(a) of the Independent Electoral and Boundaries Commission Act, 2011, by virtue of the fact that he contested for the position of Governor of Mandera County in the 2022 General Elections, thereby rendering him ineligible for appointment to the Commission having held political office within the prescribed disqualifying period of five years;
A DECLARATION that the recommendation of MS. MARY KAREN SOROBIT for appointment as a member of the Independent Electoral and Boundaries Commission (IEBC) is unconstitutional, unlawful, and invalid for reason that she was, at the time of her nomination, a member and office bearer of the Jubilee Party, contrary to Article 88(2)(a) of the Constitution of Kenya, 2010, and is therefore conflicted and incapable of discharging her duties with the impartiality, independence, and integrity required of a commissioner under Articles 10, 73, and 232 of the Constitution.
A DECLARATION that the recommendation of MS. ANNE NJERI NDERITU for appointment as a member of the Independent Electoral and Boundaries Commission (IEBC) is unconstitutional, unlawful, and invalid for reason that she was, at the time of her nomination, State Officer, contrary to Article 88(2)(b) of the Constitution of Kenya, 2010, and is therefore conflicted and incapable of discharging her duties with the impartiality, independence, and integrity required of a commissioner under Articles 10, 73, and 232 of the Constitution.
AN ORDER OF CERTIORARI be and is hereby issued to quash the decision and/or recommendation of the Selection Panel for the Appointment of Commissioners to the IEBC to nominate Ms. Mary Karen Sorobit for appointment to the said Commission.
A DECLARATION that the nomination of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH for appointment to the Independent Electoral and Boundaries Commission (IEBC) by the Selection Panel is unconstitutional, unlawful, null and void for having been undertaken in a process that failed to comply with the requirements of Articles 10, 73(2)(a), 88(2)(a), and 232(1)(g) and (h) and 250 (3) & (4) of the Constitution of Kenya, 2010.
Pursuant to Article 23 (3) of the Constitution of Kenya, 2010, AN ORDER OF CERTIORARI does issue quashing the decision dated 8TH MAY; 2025 issued by the HEAD OF PUBLIC SERVICE to the effect of nominating ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA
ARAPHAT ABDALLAH as members of the Independent Electoral and Boundaries Commission.
AN ORDER OF PERMANENT INJUNCTION restraining ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH nominated and/or recommended by the Selection Panel for appointment as Commissioners of the Independent Electoral and Boundaries Commission from assuming, occupying, or performing the functions of the office of Commissioner of the Independent Electoral and Boundaries Commission, on grounds of violation of the Constitution, including but not limited to breach of the principles of political neutrality, integrity, and fair administrative action as enshrined under Articles 10, 73, 88(2)(a), 232 and 250 (3) & (4) of the Constitution of Kenya, 2010.
A DECLARATION that the Attorney General failed in their constitutional mandate under Article 156(4) of the Constitution of Kenya, 2010 by neglecting to provide independent, impartial, and sound legal advice to the Executive regarding the nomination of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH Commissioners of the Independent Electoral and Boundaries Commission (IEBC), thereby failing to protect the rule of law and the public interest, as mandated by the Constitution.
Any other or further orders, writs and directions this court considers appropriate and just to grant for the purpose of the enforcement of the Petitioners’ fundamental rights and freedoms.
Responses to the Petition
The 1 st Respondent opposes the Petition dated 13 th May, 2025 through a Preliminary Objection dated 16 th May, 2025 raising the following grounds:
The Petition is non-justiciable on account of having been instituted contrary to the principle of ripeness.
2. The Petitioners has offended the doctrine of exhaustion as they have not exhausted the constitutionally provided remedy before invoking the jurisdiction of the Honourable court
3. That the exercise of jurisdiction by the Honourable court at the stage of the appointment process of Commissioner of an independent constitutional commission would be contrary to the doctrine of separation of powers and would constitute a usurpation of the primary role of the legislature in the approval process.
5. The petition merits dismissal under the constitutional avoidance doctrine
The 1 st Respondent also filed Grounds of Opposition dated 9 th June, 2025 to oppose the Petition on the following grounds, verbatim :
The Petitioners have failed to dislodge the legal presumption of regularity of all executive action in the entire petition; Omnia praesumuntur rite esse acta .
The petition is supported by a defective supporting affidavit that offends the provisions of Order 19 Rule 3 (1) of the Civil Procedure Rules in that the deponent has not confined himself to such facts as he is able of his own knowledge to prove and are contains inadmissible averments.
The annexure marked ‘KRO-2’to the supporting affidavit of Kelvin Roy Omondi constitutes illegally obtained evidence which ought to be struck out.
The Petitioners approbates and reprobates in their averments; on the one hand they aver that they haven’t been furnished with information in respect to the recommendations and scores on the candidates and on the other hand they aver that the selection was not based on merit as some candidates did not achieve high scores in the interviews.
The Petitioners do not disclose the basis of his assertion that one Moses Alutalala Mukhwana got low marks.
The Petitioners fail to appreciate that ‘public service’ is expressly defined in Article 260 of the Constitution as ‘…the collectivity of all individuals, other than State officers, performing a function within a state organ.
The 1 st to 7 th Interested Parties meet the constitutional criteria provided in Article 250 (4) in that they are from diverse ethnic backgrounds and are from different counties as specified in the first schedule to the constitution as provided in Article 6 (1) of the constitution which are the constitutionally prescribed regions.
Article 250 (4) of the Constitution provides for a wholesome consideration of all appointments to all commissions and independent offices, there is no legal basis for the Petitioners’ allegations that it was mandatory for the nomination and appointment of a person with disabilities into the Independent Electoral and Boundaries Commission.
Article 88 (2) of the constitution provides for eligibility for appointment not for nomination.
Article 250 (2) of the Constitution contemplates identification and recommendation, approval by the National Assembly and appointment by the President as distinct steps in the appointment process, the allegations in respect to appointment of state officers is therefore premature.
The allegation that the provisions of Article 88 (2) (a) of the constitution prohibit persons who have vied for the position of Governor is not provided for in the Constitution.
The personal view of an unelected private individual cannot supersede the views of a duly elected constitutional house of representatives as being representative of public perception.
The petition is oblivious to the constitutional prescription of equality before the law and to equal protection of the law as the Petitioners seek to subordinate the fundamental freedoms and rights of the 1 st to 7th Interested Parties to those of the Petitioners.
The allegations of non-participation, non-consultation with minority and majority parties is fallacious as the entire process was specifically subjected to the approval of the very same parties in the August house under Article 250 (2) (b) of the constitution.
The allegations in respect to infringement of Article 35 of the constitution are contradicted by the documents published by the state and made available subsequent to such publication which have been presented before court by the Petitioners.
The Petitioners have not availed of the statutory mechanism for access to information set out in the access to information act contrary to the doctrine of constitutional avoidance.
This Honourable court lacks an appellate jurisdiction over the decision of the President and the National Assembly.
This Honourable court lacks the capacity to determine the polycentric considerations on the merits of appointments of commissioners of independent constitutional commissions.
This Honourable court should exercise deference to the constitutional repository of the functions and decline the Petitioners invitation to undermine the comity that is necessary for the proper function of the constitution’s institutional arrangement.
The 2 nd Respondent opposes the Petition through a Preliminary Objection dated 17 th May, 2025 raising the following grounds, verbatim :
The jurisdiction of this Honourable Court has been wrongly invoked as the issues raised herein shall be subject to vetting and approval by the National Assembly pursuant to Article 250 (2) of the Constitution as read with Section 3 (5) of the First Schedule of the IEBC Act;
The Petition is an attempt to circumvent and usurp the Constitutional and statutory mandate and authority of the National Assembly in the approval of the Chairperson and members of the IEBC;
The Petition offends the findings in Bishop Donald Kisaka Mwawasi v Attorney General & 2 others [2014] KECA 561 (KLR) which confirms that the eligibility of a candidate for a public office is at the time of taking said office and not at nomination.
The 2 nd Respondent also filed Grounds of Opposition dated 9 th June, 2025 to oppose the Petition on the following grounds, verbatim :
The Selection Panel of the IEBC complied with the requisite provisions of the Constitution as read with the First Schedule of the IEBC Act in nominating the 1 st to 7 th Interested Parties as Chairperson and Commissioners of the IEBC.
The allegation that the nominations do not represent Kenya’s diverse communities as it excludes ethnic communities is misconceived noting that the 1 st to 7th Interested Parties, originate from 7 different ethnic communities and 7 different counties.
The allegation that the some of the nominees of the position of Chairperson and Members of the IEBC did not “achieve high scores in the interviews” is nothing short of conjecture as no material evidence has been placed before this Honourable Court to substantiate such allegation.
There exists no Constitutional or Statutory obligation on the Selection Panel to “engage or consult” the Minority/Majority Political Parties at the National Assembly prior to nominating candidates for Chairperson and Members of the IEBC as urged by the Petitioners. The candidates were vetted at the National Assembly according the members of the political parties the opportunity to be “engaged and consulted”.
The 5 th Interested Party was, part of the 111 persons on the shortlist.
The claim by the Petitioners of want of regional b
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