Introduction
1. The Petition dated 13th May 2025 assails the manner the 1st – 7th Interested Parties were selected and nominated to serve as Chairman and Commissioners of the Independent Electoral and Boundaries Commission (IEBC).
2. The Petitioners challenge the selection process of the seven interested parties on the grounds that it was carried out in violation of Articles 10, 27(1), 73(2), 88(2), 232 and 250 (3) & (4) of the Constitution as read with the Independent Electoral and Boundaries Commission Act as well as the Public Appointments (Parliamentary Approval) Act.
The Notice of Motion Application for Conservatory orders
3. Filed contemporaneously with the Petition was the Notice of Motion of even date, praying for orders as follows:
i. Spent.
ii. Pending the hearing and determination of the instant Application, the Court does issue Conservatory Orders staying and/or suspending the consideration and vetting of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH for the positions of Chairperson and commissioners of the Independent Electoral and Boundaries Commission by the National Assembly.
iii. In the alternative to (2) above, pending the hearing and determination of the instant Application, the Court does issue an order of Injunction, stopping the gazettement of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH as the Chairperson and commissioners respectively of the Independent Electoral and Boundaries Commission by the National Assembly.
iv. In the alternative to (3) above, pending the hearing and determination of the instant Application, the Court does issue Conservatory Orders suspending the taking of oath by ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH or if they shall have taken oath of office at the time of hearing the instant Application and Petition they be barred from assuming office, taking office, drawing salaries and/or acting or being Member(s) of the Independent Electoral and Boundaries Commission.
v. Pending the hearing and determination of the instant Petition the Court does issue Conservatory Orders staying and suspending the consideration and vetting of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH for the positions of Chairperson and Commissioners of the Independent Electoral and Boundaries Commission by the National Assembly.
vi. In the alternative to (5) above, pending the hearing and determination of this Petition, the Court does issue an order of Injunction, stopping the gazettement of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH as the Chairperson and commissioners respectively of the Independent Electoral and Boundaries Commission by the National Assembly;
vii. In the alternative to (6) above, pending the hearing and determination of this Petition, the Court does issue Conservatory Orders suspending the taking of oath by ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH or if they shall have taken oath of office at the time of hearing the instant Application and Petition they be barred from assuming office, taking office, drawing salaries and/or acting or being Member(s) of the Independent Electoral and Boundaries Commission.
viii. The Court does direct that the instant suit be served by way of advertisement in any of the popular local dailies with nationwide circulation.
ix. Any such other and further orders that the Court may deem fit to grant in the circumstances.
Petitioners’ Case
4. The Application is supported by the 1st Petitioner’s affidavit, of even date sworn on behalf of both Petitioners, the grounds on the face of the Application and a further affidavit sworn on 15th May, 2025.
5. The Petitioner laid out the context of the Application by stating that prior to the commencement of the recruitment process of the new nominees to Commission, the Independent Electoral and Boundaries Commission Act was amended to be in accordance with the National Dialogue Committee’s recommendations.
6. Thereafter, Selection Panel was constituted by the 3rd Respondent to initiate the recruitment process and what followed was the declaration of vacancies in the IEBC.
7. The Selection Panel vide Gazette Notice No. Vol. CXXVII – No.21 dated 3rd February 2025, invited applications and subsequently shortlisted a number of people for the interviews.
8. At the end of that exercise, the Selection Panel issued its Report to His Excellency the President, Dr.William Samoei Ruto forwarding the names for the position of Chairperson and nine names for the Commissioners.
9. On 8th May 2025, the Office of the President through the 2nd Respondent published the names of the seven persons (the 1st to 7th Interested Parties herein) nominated to serve Chairman and Commissioners.
10. The Petitioners contend that the selection process was not merit based for a number of reasons.
11. Firstly, it is alleged that some of the candidates such as the 3rd Interested Party did not score as high as the others in the interviews.
12. As for the 1st Interested Party’s nomination, the Petitioners allege that the Chairperson has close affiliations with Mr. Josephat Nanok, the Statehouse Deputy Chief of Staff to the President hence the nomination is being challenged on grounds of partiality/bias.
13. In respect of the 5th Interested Party, the Petitioners assert that he was never shortlisted for the interviews, rather, his name was sneaked in mysteriously under unclear circumstances which is contrary to Section 3 of the Independent Electoral and Boundaries Commission Act. The Petitioners assert that this preferential action was discriminated against all the other candidates who had legitimately applied and shortlisted.
14. The Petitioners protest that the 2nd Interested Party was at the time of nomination a State Officer and the 4th Interested Party was a member and officer bearer of a political party. The Petitioners fault the nomination as being in violation of Article 88(2) of the Constitution and also in breach of Articles 10, 73(2)(a), 232 (1)(g) of the Constitution.
15. Further, the 1st to 7th Interested Parties nominations is contested as to be illegal and unconstitutional as they do not meet threshold of public appointments as stipulated in the Constitution and the Law.
16. The Petitioners deposed that the 1st to 7th Interested Parties nominations do not meet the requirements of regional and ethnic balance contrary to Articles 10, 27(1), 232 and 250(3) and (4) of the Constitution. It was pointed out that both the 1st and 4th Interested Parties are from Rift Valley region. A comparable argument is made in relation to representation of persons with disabilities. It is stated that this is despite Edward Katama Ngenywa among many others having been shortlisted and interviewed as persons with disabilities, none of whom was selected.
17. Moreover, the nominees were selected without prior consultation with the minority and majority political parties as highlighted in the National Dialogue Committee Report hence were in breach of Articles 10 and 27(1) of the Constitution.
18. The Petitioners further contend that the Selection Panel’s Report on the outcome of the interviews was not publicly shared contrary to Article 35 of the Constitution. Their request for information was ignored by the Selection Panel.
19. In the light of the above, the Petitioners believe that they have demonstrated a prima facie case for issuance of conservatory orders.
20. They maintained that should this this Court not issue conservatory orders, their Petition will become moot since upon taking office, the Constitution, under Articles 248 and 251 does not provide for removal of the Commissioners on grounds of illegal or unconstitutional appointment.
21. Furthermore, the Petitioners assert in their further affidavit that the members of the 3rd Respondent have made public utterances vowing to approve the 1st to 7th Interested Parties nomination thus confirming the Petitioners’ apprehension. According to the Petitioners’ the pronouncements are confirmatory of an already tainted Parliamentary Process with a predetermined conclusion. As such, the Petitioners assert that the vetting process will only be a mere cosmetic exercise hence urge this Court to grant the orders sought.
1st Respondent’s Case
22. In its response to the Petition and Notice of Motion Application, the 1st Respondent filed a Notice of Preliminary Objection dated 16th May 2025 on the grounds that:
i. The Petition is non-justiciable on account of having been instituted contrary to the principle of ripeness.
ii. The Petitioner has not exhausted the first instance, constitutionally provided remedy before invoking the jurisdiction of this Court, thereby contravening the doctrine of exhaustion
iii. The exercise of jurisdiction by this Court at this 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.
iv. The claim against the Attorney-General is non-justiciable and premature.
v. The Petition merits dismissal under the constitutional avoidance doctrine
2nd Respondent’s Case
23. In like manner, the 2nd Respondent filed its Notice of Preliminary Objection dated 17th May 2025 on the foundation that:
i. The jurisdiction of this 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.
ii. 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.
iii. 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.
3rd Respondent’s Case
24. The 3rd Respondent in response filed its Notice of Preliminary Objection dated 15th May 2025 on the basis that:
i. The Petitioners’ Notice of Motion and Petition are not justiciable for violating the doctrine of ripeness.
ii. To the extent that Petition and the Notice of Motion challenges an ongoing constitutional process in respect of which no decision or action has been taken by the National Assembly, the Petitioners’ Notice of Motion and Petition are speculative and deals with prospective anticipatory circumstances rather than current or probable events.
iii. The Petitioners, having failed to exhaust all avenues available to them under the Constitution and the Standing Orders, the Petition and Application violate the doctrine of exhaustion and are therefore premature.
25. In the Replying Affidavit sworn on 15th May 2025, Jeremiah Ndombi, the 3rd Respondent’s Deputy Clerk depones that by a letter dated 9th May 2025, the 2nd Respondent forwarded to the 3rd Respondent’s Speaker, the names of the selected persons in line with Section 4 of the Public Appointments (Parliamentary Approval) Act. The Speaker in line with Section 4 of the Act then notified the House of the selection on the same day.
26. Additionally, the Speaker committed the 1st to 7th Interested Parties names to the 3rd Respondent’s Departmental Committee on Justice and Legal Affairs (JLAC). He informs that the Committee is required to conduct approval hearings as stipulated under Section 6(1) within 28 days and issue its Report to the House.
27. The public was also on 12th May 2025 vide the local dailies notified of the nominees and requested to issue their comments and memoranda concerning the nominees by 21st May 2025. In view of this, he stresses that the process is still ongoing.
28. He states that during the 3rd Respondent’s vetting process among the issues examined is whether the correct procedure was followed in selecting the nominees and to undertake a merit review of the entire selection process against the law. Owing to this, he contends that the Petitioners should have raised these issues at that juncture. Taking these factors into consideration, he asserts that the Petitioners have failed to satisfy the threshold for grant of conservatory orders.
29. Be that as it may, he points out that if the conservatory orders are issued the public participation and vetting process will be halted thus denying the public and 3rd Respondent the opportunity to exercise their right and mandate respectively. He adds that once the 28 days lapse, the 1st to 7th Interested Parties shall be deemed to have been duly approved in light of Section 9 of the Public Appointments (Parliamentary Approval) Act. Consequently, he argues that grant of the conservatory orders will in the end defeat the dictates of the Constitution.
2nd Interested Party Case
30. In like manner, the 2nd Interested Party filed its Notice of Preliminary Objection dated 15th May 2025 on the premise that:
i. The Petition and the Notice of Motion dated 13th May, 2025 violate the Doctrine of Exhaustion, Justiciability and this Court ought to exercise and adhere to the Doctrine of Avoidance.
ii. Under the Public Appointments (Parliamentary Approval) Act it is Parliament that is mandated to consider any issues concerning the nominees and not this Court.
iii. The matter herein is neither ripe nor justiciable as it remains pending before the National Assembly, which is yet to conclude its constitutionally mandated role in the appointment process. Litigating this matter at this stage would therefore offend the constitutional doctrine of separation of powers and the principle of institutional competence.
31. Likewise, the 2nd Interested Party filed her Replying Affidavit on even date. She depones that she submitted her application to the Selection Panel and was interviewed on 28th March 2025. She later on learnt on 8th May 2025 that she was among the selected nominees.
32. She asserts that the position of member of the Commission is open to all eligible persons not withstanding whether they are State Officers. She avers that there exists no legal bar as alleged and that the Petitioners have misinterpreted the edicts of Article 88(2)(b) of the Constitution.
33. She further contends that the Petitioners are prosecuting this Petition in the wrong forum. She states that this matter ought to be brought before the 3rd Respondent as stipulated under the Public Appointments (Parliamentary Approval) Act. For this reason, the matter is not ripe for determination.
3rd Interested Party’s Case
34. The 3rd Interested Party filed his Replying Affidavit sworn on 15th May 2025.He in like fashion submitted that the application was premature in view of the ongoing constitutional process thus unmerited and an invitation to breach the doctrine of separation of powers. He argues that this Court does not have jurisdiction to entertain the matter.
35. He depones that his application to be a member of the Commission was made in accordance with the law. He submitted his application on 5th March 2025 and was thereafter shortlisted and interviewed on 15th April 2025. He notes that in line with public participation, the public was also invited to issue comments and memorandum concerning the shortlisted Candidates. He asserts that the claim that he garnered a low score is unsubstantiated as no material was placed before the Court to support the same.
36. He avers that following their nomination, he received a letter dated 12th May 2025 inviting him for the approval hearing before the 3rd Respondent’s Committee (JLAC) set for 26th May 2025.
37. Furthermore, he alleges that the assertion of breach of regional balance is premised on a misinterpretation of the law as the country is now divided into counties not provinces. Equally he notes that it would be unrealistic for there to be a complete representation of all counties due to the limited number of positions.
38. According to him, the Petitioners have not set out any demonstratable grounds to warrant issuance of the sought orders.
4th Interested Party’s Case
39. In reply, the 4th Interested Party filed her Replying Affidavit sworn on 15th May 2025. On the onset she avers that the Petition offends the doctrine of exhaustion, ripeness, justiciability and separation of powers.
40. She depones that she applied for the position of member of the Commission and was among the persons who were shortlisted and interviewed on 27th February 2025. She avers that the Petitioners neglected to issue their concerns regarding her eligibility to the Selection Panel. Considering this, she perceives that the Petition is disingenuous and malicious as seeks to raise the issue now.
41. Contrary to the Petitioners allegations, she claims that she has never served as the Executive Director or member of the Jubilee Party’s governing body within the preceding five years. She notes that this was confirmed by the Registrar of Political Parties in its letter dated 15th May 2025.She adds that she does not have any political affiliations with any political party. That said, she points out that the Petitioner did not adduce any evidence to support this allegation.
42. Additionally, she posits that the claim for breach of requirement for regional balance lacks a legal basis as it is clear that herself and the 1st Interested Party’s come from different Counties. Nonetheless, she reasons that nomination of persons from all the counties would be unrealistic as the positions are only 7 in number.
43. It is asserted further that Section 6(9) of the Public Appointments (Parliamentary Approval) Act allows a person to contest suitability of any candidate during the 3rd Respondent’s vetting and approval process which the Petitioners have failed to exhaust. In addition, it is observed that the Petition is premature as the process is ongoing before the 3rd Respondent which in turn leads to violation of the doctrine of separation of powers. In view of the foregoing, she asserts that the application has not met the prerequisite for grant of the sought orders.
5th Interested Party’s Case
44. The 5th Interested Party in response filed his Replying Affidavit sworn on 19th May 2025.
45. He depones that when the Selection Panel called for applications, he submitted his application and was shortlisted for an interview conducted on 24th April 2025.He stated that the Petitioners allegations are false as it evident that his name was in the shortlist published in the Daily Nation Newspaper dated 25th March 2025. He stresses that the Petitioners’ have failed to demonstrate that his nomination was irregular.
46. He states additionally that this Court lacks jurisdiction to entertain the matter as it is not yet ripe for determination. The Petition is thus said to be premature and not justiciable.
47. He notes that the 3rd Respondent is mandated to vet all nominees to the Commission before they are appointed thus this Petition seeks to have the Court interfere with the process. This is contrary to the Petitioners’ presenting their Petition before the 3rd Respondent to enable it consider their complaints while exercising its mandate as provided under Section 7 of the Public Appointments (Parliamentary Approval) Act. He argues as such that the Petition offends the doctrine of exhaustion. Ultimately, the 5th Interested Party asserts that the Petitioners’ application has failed to meet the threshold for grant of conservatory orders.
6th Interested Party’s Case
48. In reply, the 6th Interested Party filed its Grounds of Opposition dated 15th May 2025 on the premise that:
i. The instant application is an abuse of the Court process, fatally defective and hence ought to be struck off and/ or dismissed with costs.
ii. The Application is superfluous and a clog in judicial time and processes as the 6th Interested Party applied for the position as advertised, handed in the academic credentials; attended the interview as publicly aired; and shortlisted for confirmation.
iii. The 6th Interested Party was vetted by IEBC selection panel and IEBC is not a party to the suit.
iv. The Application has been overtaken by events and is absurd because the IEBC Selection panel has already been disbanded.
v. The said List of Nominees complied with the requirements of Section 5 of the Independent Electoral Boundaries Commission Act.
vi. Section 5 of the Independent Electoral Boundaries Commission Act provides a membership limited to seven (7) members hence it is impractical to represent all ethnic groups or achieve complete regional or ethnic balance in Kenya on the Independent Electoral Boundaries Commission.
vii. Section 5 of the Independent Electoral Boundaries Commission Act does not set out a strict formula for achieving ethnic and regional balance in a body limited to seven (7) members hence that discretion is left to the selection panel
viii. The principle of inclusiveness under Article 10 of the Constitution was complied with in context of selecting nominees to the Independent Electoral Boundaries Commission as provided for under the Independent Electoral Boundaries Commission (Amendment) Act, 2024, which contemplates a broad diversity particularly regarding gender and integrity as opposed to the selection of specific nominees based on their regional locality, although the discretion is entirely bestowed on the respective bodies.
ix. Article 54(2) of the Constitution is framed in a language envisaging progressive realization, to ensure that no less than 5% of public bodies comprise of persons with disabilities. This requirement means that an appointing authority must take active steps to search for and include qualified candidates with disabilities, subject to the size and nature of the body.
x. Section 107 and 108 of the Evidence Act require the Applicant to prove that qualified persons living with disability applied or were interviewed but were overlooked or that the selection panel acted in bad faith or in deliberate disregard of known disabled candidates who met the qualifications listed under Section 6 of the Independent Electoral Boundaries Commission Act.
xi. The Applicant has failed to satisfy and/ or provide the provisions of the law the 6th Interested Party has violated.
xii. The Applicant’s Application is premised to deny the 6th Interested Party enjoyment of the fruits of the selection panel’s outcome and to serve the nation as a qualified commissioner contrary to Section 4 of the Independent Electoral Boundaries Commission Act.
xiii. There is no prejudice that will be occasioned upon the Applicants.
xiv. The Application ought to be struck out or dismissed with costs to the 6th Interested party.
7th Interested Party’s Case
49. The 7th Interested Party in response filed Grounds of Opposition dated 18th May 2025 as follows:
i. The Affidavit sworn on 13.05.2025 and the Further Affidavit sworn on 15.05.2025 are argumentative and disclose no issues of facts capable of being responded to by the 7th Interested Party. As such, there is neither a legal nor viable cause of action by the Petitioners as against the 7th Interested Party. The 7th Interested Party should be struck out from these proceedings in accordance with Section 5(d)(i) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules.
ii. Notice of Motion and the Petition are drafted in an omnibus manner. The process of shortlisting and nomination was conducted on the basis of individual qualification and merit. The omnibus manner in which the Petitioners gravamen is espoused is prejudicial and unfair to the candidature 7th Interested Party whose process of shortlisting and nomination the Petitioners find no issue with.
iii. The Notice of Motion and the Petition violates the doctrine of judicial restraint as it invites this Court to interfere with the constitutional and statutory mandate of constitutional institutions and mechanism - This is supported by the Supreme Court in Speaker of the Senate & Another v Attorney-General & 4 Others [2013] KESC 7 (KLR) where the court emphasized the need for courts to be cautious not to usurp the role of Parliament unless there is a demonstrated breach of the Constitution; In Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others[2014]KESC 9(KLR) the Supreme Court ruled that decisions by constitutionally established vetting bodies should not be interfered with lightly so as to uphold the mandate of independent institutions and further, the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others[2013]KECA 445 (KLR) emphasized that Courts should not substitute their judgment for that of the appointing authorities.
iv. The Notice of Motion and the Petition violates the doctrine of separation of powers as it invites this Court to determine the outcome of a process within the exclusive legal mandate of Parliament:
a. Article 250(2) that requires chairpersons and each member of a commission, and the holder of an independent office, to be identified and recommended for appointment in a manner prescribed by national legislation, approved by the National Assembly and appointed by the President.
b. Section 7 and 10 of the Public Appointments (Parliamentary Approval) Act that requires Parliament to consider the procedure used to arrive at a nomination, any constitutional or statutory requirements relating to the office in question, the suitability of the nominee and being clothed with the powers to reject any such nominees after such consideration.
c. This is a direct mandate and process entrusted to Parliament and it has already called for public participation vide submission of memoranda including supporting affidavits on oath contesting the suitability of any the Nominees as provided for under Section 6 of the Public Appointments (Parliamentary Approval) Act.
d. Therefore, the Notice of Motion and the Petition are premature and if at all the same was to be in issue, it would have sufficed as a memorandum submitted before the Departmental Committee on Justice and Constitutional Affairs in Parliament for consideration rather than a matter before this court.
e. The Supreme Court in Justus Kariuki Mate & another v Martin Nyaga Wambora Wambora & another [2017] KESC 1 (KLR) cautioned against undue interference with running processes in other arms of Government and that the doctrine of separation of power which bars interference with the Parliament's internal arrangements and procedures; The Supreme Court in Speaker of the Senate & another v Attorney-General & another; Law Society of Kenya & 2 others[2013]KESC 7 (KLR) equally held that the Parliament has a right under article 117 and 124 of the Constitution to regulate its internal affairs, courts cannot supervise the workings of Parliament and that the institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another.
v. The Notice of Motion and the Petition does not specifically state how the application, shortlisting and nomination of the 7th Interested Party violates the national values and principles of government under Article 10; the values and principles of public service under Article 232; the specific qualifications required by the Constitution or national legislation that the 7th Interested Party did not meet under Article 232(3); or how her nomination violates the regional and ethnic diversity of the people of Kenya under Article 232(4).
Indeed, the 7th Interested party is a woman from the Bajuni Community, a minority group but was also professionally and academically qualified to be a member of the Commission and her presence amongst the nominees reflect the regional and ethnic diversity in this Country within the provisions of Paragraph 6 in the 1st Schedule of the Independent Electoral and Boundaries Commission Act.
a) Further, there are no sufficient grounds or evidence on the face of the Notice of Motion and the Petition to support the allegation that the shortlisting and nomination of the 7th Interested Party violated the guiding principles of leadership and integrity under Article 73(2) (a) or that she failed to meet the eligibility criteria set out under Article 88(2) (a).
b) That the Notice of Motion dated 03.05.2025, Petition dated 13.05.2025 and the Further Affidavit sworn on 15.05.2025 are consequently incompetent, incurably defective and an abuse of the court processes and should be dismissed with costs to the 7th Interested Party.
Petitioners’ Submissions
50. The Petitioners through Douglas and Associates Advocates filed submissions dated 17th May 2025 and set out the issues for discussion as: whether the preliminary objections are merited and whether the Petition deserves conservatory orders.
51. On the first issue, Counsel submitted that the Petition was chiefly opposed on the ground of being premature thus unjustifiable. It was asserted that these objections lack merit as Article 22 and 258 of the Constitution provide that one has a right to institute a suit where they believe their fundamental rights are threatened with violation. As a result, Counsel argued that the Petitioners are not required to wait until a bre
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1. The Petition dated 13th May 2025 assails the manner the 1st – 7th Interested Parties were selected and nominated to serve as Chairman and Commissioners of the Independent Electoral and Boundaries Commission (IEBC).
2. The Petitioners challenge the selection process of the seven interested parties on the grounds that it was carried out in violation of Articles 10, 27(1), 73(2), 88(2), 232 and 250 (3) & (4) of the Constitution as read with the Independent Electoral and Boundaries Commission Act as well as the Public Appointments (Parliamentary Approval) Act.
The Notice of Motion Application for Conservatory orders
3. Filed contemporaneously with the Petition was the Notice of Motion of even date, praying for orders as follows:
i. Spent.
ii. Pending the hearing and determination of the instant Application, the Court does issue Conservatory Orders staying and/or suspending the consideration and vetting of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH for the positions of Chairperson and commissioners of the Independent Electoral and Boundaries Commission by the National Assembly.
iii. In the alternative to (2) above, pending the hearing and determination of the instant Application, the Court does issue an order of Injunction, stopping the gazettement of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH as the Chairperson and commissioners respectively of the Independent Electoral and Boundaries Commission by the National Assembly.
iv. In the alternative to (3) above, pending the hearing and determination of the instant Application, the Court does issue Conservatory Orders suspending the taking of oath by ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH or if they shall have taken oath of office at the time of hearing the instant Application and Petition they be barred from assuming office, taking office, drawing salaries and/or acting or being Member(s) of the Independent Electoral and Boundaries Commission.
v. Pending the hearing and determination of the instant Petition the Court does issue Conservatory Orders staying and suspending the consideration and vetting of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH for the positions of Chairperson and Commissioners of the Independent Electoral and Boundaries Commission by the National Assembly.
vi. In the alternative to (5) above, pending the hearing and determination of this Petition, the Court does issue an order of Injunction, stopping the gazettement of ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH as the Chairperson and commissioners respectively of the Independent Electoral and Boundaries Commission by the National Assembly;
vii. In the alternative to (6) above, pending the hearing and determination of this Petition, the Court does issue Conservatory Orders suspending the taking of oath by ERASTUS EDUNG ETHEKON; ANNE NJERI NDERITU; MOSES ALUTALALA MUKHWANA; MARY KAREN SOROBIT; HASSAN NOOR HASSAN; FRANCIS ODHIAMBO ADUOL; FAHIMA ARAPHAT ABDALLAH or if they shall have taken oath of office at the time of hearing the instant Application and Petition they be barred from assuming office, taking office, drawing salaries and/or acting or being Member(s) of the Independent Electoral and Boundaries Commission.
viii. The Court does direct that the instant suit be served by way of advertisement in any of the popular local dailies with nationwide circulation.
ix. Any such other and further orders that the Court may deem fit to grant in the circumstances.
Petitioners’ Case
4. The Application is supported by the 1st Petitioner’s affidavit, of even date sworn on behalf of both Petitioners, the grounds on the face of the Application and a further affidavit sworn on 15th May, 2025.
5. The Petitioner laid out the context of the Application by stating that prior to the commencement of the recruitment process of the new nominees to Commission, the Independent Electoral and Boundaries Commission Act was amended to be in accordance with the National Dialogue Committee’s recommendations.
6. Thereafter, Selection Panel was constituted by the 3rd Respondent to initiate the recruitment process and what followed was the declaration of vacancies in the IEBC.
7. The Selection Panel vide Gazette Notice No. Vol. CXXVII – No.21 dated 3rd February 2025, invited applications and subsequently shortlisted a number of people for the interviews.
8. At the end of that exercise, the Selection Panel issued its Report to His Excellency the President, Dr.William Samoei Ruto forwarding the names for the position of Chairperson and nine names for the Commissioners.
9. On 8th May 2025, the Office of the President through the 2nd Respondent published the names of the seven persons (the 1st to 7th Interested Parties herein) nominated to serve Chairman and Commissioners.
10. The Petitioners contend that the selection process was not merit based for a number of reasons.
11. Firstly, it is alleged that some of the candidates such as the 3rd Interested Party did not score as high as the others in the interviews.
12. As for the 1st Interested Party’s nomination, the Petitioners allege that the Chairperson has close affiliations with Mr. Josephat Nanok, the Statehouse Deputy Chief of Staff to the President hence the nomination is being challenged on grounds of partiality/bias.
13. In respect of the 5th Interested Party, the Petitioners assert that he was never shortlisted for the interviews, rather, his name was sneaked in mysteriously under unclear circumstances which is contrary to Section 3 of the Independent Electoral and Boundaries Commission Act. The Petitioners assert that this preferential action was discriminated against all the other candidates who had legitimately applied and shortlisted.
14. The Petitioners protest that the 2nd Interested Party was at the time of nomination a State Officer and the 4th Interested Party was a member and officer bearer of a political party. The Petitioners fault the nomination as being in violation of Article 88(2) of the Constitution and also in breach of Articles 10, 73(2)(a), 232 (1)(g) of the Constitution.
15. Further, the 1st to 7th Interested Parties nominations is contested as to be illegal and unconstitutional as they do not meet threshold of public appointments as stipulated in the Constitution and the Law.
16. The Petitioners deposed that the 1st to 7th Interested Parties nominations do not meet the requirements of regional and ethnic balance contrary to Articles 10, 27(1), 232 and 250(3) and (4) of the Constitution. It was pointed out that both the 1st and 4th Interested Parties are from Rift Valley region. A comparable argument is made in relation to representation of persons with disabilities. It is stated that this is despite Edward Katama Ngenywa among many others having been shortlisted and interviewed as persons with disabilities, none of whom was selected.
17. Moreover, the nominees were selected without prior consultation with the minority and majority political parties as highlighted in the National Dialogue Committee Report hence were in breach of Articles 10 and 27(1) of the Constitution.
18. The Petitioners further contend that the Selection Panel’s Report on the outcome of the interviews was not publicly shared contrary to Article 35 of the Constitution. Their request for information was ignored by the Selection Panel.
19. In the light of the above, the Petitioners believe that they have demonstrated a prima facie case for issuance of conservatory orders.
20. They maintained that should this this Court not issue conservatory orders, their Petition will become moot since upon taking office, the Constitution, under Articles 248 and 251 does not provide for removal of the Commissioners on grounds of illegal or unconstitutional appointment.
21. Furthermore, the Petitioners assert in their further affidavit that the members of the 3rd Respondent have made public utterances vowing to approve the 1st to 7th Interested Parties nomination thus confirming the Petitioners’ apprehension. According to the Petitioners’ the pronouncements are confirmatory of an already tainted Parliamentary Process with a predetermined conclusion. As such, the Petitioners assert that the vetting process will only be a mere cosmetic exercise hence urge this Court to grant the orders sought.
1st Respondent’s Case
22. In its response to the Petition and Notice of Motion Application, the 1st Respondent filed a Notice of Preliminary Objection dated 16th May 2025 on the grounds that:
i. The Petition is non-justiciable on account of having been instituted contrary to the principle of ripeness.
ii. The Petitioner has not exhausted the first instance, constitutionally provided remedy before invoking the jurisdiction of this Court, thereby contravening the doctrine of exhaustion
iii. The exercise of jurisdiction by this Court at this 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.
iv. The claim against the Attorney-General is non-justiciable and premature.
v. The Petition merits dismissal under the constitutional avoidance doctrine
2nd Respondent’s Case
23. In like manner, the 2nd Respondent filed its Notice of Preliminary Objection dated 17th May 2025 on the foundation that:
i. The jurisdiction of this 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.
ii. 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.
iii. 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.
3rd Respondent’s Case
24. The 3rd Respondent in response filed its Notice of Preliminary Objection dated 15th May 2025 on the basis that:
i. The Petitioners’ Notice of Motion and Petition are not justiciable for violating the doctrine of ripeness.
ii. To the extent that Petition and the Notice of Motion challenges an ongoing constitutional process in respect of which no decision or action has been taken by the National Assembly, the Petitioners’ Notice of Motion and Petition are speculative and deals with prospective anticipatory circumstances rather than current or probable events.
iii. The Petitioners, having failed to exhaust all avenues available to them under the Constitution and the Standing Orders, the Petition and Application violate the doctrine of exhaustion and are therefore premature.
25. In the Replying Affidavit sworn on 15th May 2025, Jeremiah Ndombi, the 3rd Respondent’s Deputy Clerk depones that by a letter dated 9th May 2025, the 2nd Respondent forwarded to the 3rd Respondent’s Speaker, the names of the selected persons in line with Section 4 of the Public Appointments (Parliamentary Approval) Act. The Speaker in line with Section 4 of the Act then notified the House of the selection on the same day.
26. Additionally, the Speaker committed the 1st to 7th Interested Parties names to the 3rd Respondent’s Departmental Committee on Justice and Legal Affairs (JLAC). He informs that the Committee is required to conduct approval hearings as stipulated under Section 6(1) within 28 days and issue its Report to the House.
27. The public was also on 12th May 2025 vide the local dailies notified of the nominees and requested to issue their comments and memoranda concerning the nominees by 21st May 2025. In view of this, he stresses that the process is still ongoing.
28. He states that during the 3rd Respondent’s vetting process among the issues examined is whether the correct procedure was followed in selecting the nominees and to undertake a merit review of the entire selection process against the law. Owing to this, he contends that the Petitioners should have raised these issues at that juncture. Taking these factors into consideration, he asserts that the Petitioners have failed to satisfy the threshold for grant of conservatory orders.
29. Be that as it may, he points out that if the conservatory orders are issued the public participation and vetting process will be halted thus denying the public and 3rd Respondent the opportunity to exercise their right and mandate respectively. He adds that once the 28 days lapse, the 1st to 7th Interested Parties shall be deemed to have been duly approved in light of Section 9 of the Public Appointments (Parliamentary Approval) Act. Consequently, he argues that grant of the conservatory orders will in the end defeat the dictates of the Constitution.
2nd Interested Party Case
30. In like manner, the 2nd Interested Party filed its Notice of Preliminary Objection dated 15th May 2025 on the premise that:
i. The Petition and the Notice of Motion dated 13th May, 2025 violate the Doctrine of Exhaustion, Justiciability and this Court ought to exercise and adhere to the Doctrine of Avoidance.
ii. Under the Public Appointments (Parliamentary Approval) Act it is Parliament that is mandated to consider any issues concerning the nominees and not this Court.
iii. The matter herein is neither ripe nor justiciable as it remains pending before the National Assembly, which is yet to conclude its constitutionally mandated role in the appointment process. Litigating this matter at this stage would therefore offend the constitutional doctrine of separation of powers and the principle of institutional competence.
31. Likewise, the 2nd Interested Party filed her Replying Affidavit on even date. She depones that she submitted her application to the Selection Panel and was interviewed on 28th March 2025. She later on learnt on 8th May 2025 that she was among the selected nominees.
32. She asserts that the position of member of the Commission is open to all eligible persons not withstanding whether they are State Officers. She avers that there exists no legal bar as alleged and that the Petitioners have misinterpreted the edicts of Article 88(2)(b) of the Constitution.
33. She further contends that the Petitioners are prosecuting this Petition in the wrong forum. She states that this matter ought to be brought before the 3rd Respondent as stipulated under the Public Appointments (Parliamentary Approval) Act. For this reason, the matter is not ripe for determination.
3rd Interested Party’s Case
34. The 3rd Interested Party filed his Replying Affidavit sworn on 15th May 2025.He in like fashion submitted that the application was premature in view of the ongoing constitutional process thus unmerited and an invitation to breach the doctrine of separation of powers. He argues that this Court does not have jurisdiction to entertain the matter.
35. He depones that his application to be a member of the Commission was made in accordance with the law. He submitted his application on 5th March 2025 and was thereafter shortlisted and interviewed on 15th April 2025. He notes that in line with public participation, the public was also invited to issue comments and memorandum concerning the shortlisted Candidates. He asserts that the claim that he garnered a low score is unsubstantiated as no material was placed before the Court to support the same.
36. He avers that following their nomination, he received a letter dated 12th May 2025 inviting him for the approval hearing before the 3rd Respondent’s Committee (JLAC) set for 26th May 2025.
37. Furthermore, he alleges that the assertion of breach of regional balance is premised on a misinterpretation of the law as the country is now divided into counties not provinces. Equally he notes that it would be unrealistic for there to be a complete representation of all counties due to the limited number of positions.
38. According to him, the Petitioners have not set out any demonstratable grounds to warrant issuance of the sought orders.
4th Interested Party’s Case
39. In reply, the 4th Interested Party filed her Replying Affidavit sworn on 15th May 2025. On the onset she avers that the Petition offends the doctrine of exhaustion, ripeness, justiciability and separation of powers.
40. She depones that she applied for the position of member of the Commission and was among the persons who were shortlisted and interviewed on 27th February 2025. She avers that the Petitioners neglected to issue their concerns regarding her eligibility to the Selection Panel. Considering this, she perceives that the Petition is disingenuous and malicious as seeks to raise the issue now.
41. Contrary to the Petitioners allegations, she claims that she has never served as the Executive Director or member of the Jubilee Party’s governing body within the preceding five years. She notes that this was confirmed by the Registrar of Political Parties in its letter dated 15th May 2025.She adds that she does not have any political affiliations with any political party. That said, she points out that the Petitioner did not adduce any evidence to support this allegation.
42. Additionally, she posits that the claim for breach of requirement for regional balance lacks a legal basis as it is clear that herself and the 1st Interested Party’s come from different Counties. Nonetheless, she reasons that nomination of persons from all the counties would be unrealistic as the positions are only 7 in number.
43. It is asserted further that Section 6(9) of the Public Appointments (Parliamentary Approval) Act allows a person to contest suitability of any candidate during the 3rd Respondent’s vetting and approval process which the Petitioners have failed to exhaust. In addition, it is observed that the Petition is premature as the process is ongoing before the 3rd Respondent which in turn leads to violation of the doctrine of separation of powers. In view of the foregoing, she asserts that the application has not met the prerequisite for grant of the sought orders.
5th Interested Party’s Case
44. The 5th Interested Party in response filed his Replying Affidavit sworn on 19th May 2025.
45. He depones that when the Selection Panel called for applications, he submitted his application and was shortlisted for an interview conducted on 24th April 2025.He stated that the Petitioners allegations are false as it evident that his name was in the shortlist published in the Daily Nation Newspaper dated 25th March 2025. He stresses that the Petitioners’ have failed to demonstrate that his nomination was irregular.
46. He states additionally that this Court lacks jurisdiction to entertain the matter as it is not yet ripe for determination. The Petition is thus said to be premature and not justiciable.
47. He notes that the 3rd Respondent is mandated to vet all nominees to the Commission before they are appointed thus this Petition seeks to have the Court interfere with the process. This is contrary to the Petitioners’ presenting their Petition before the 3rd Respondent to enable it consider their complaints while exercising its mandate as provided under Section 7 of the Public Appointments (Parliamentary Approval) Act. He argues as such that the Petition offends the doctrine of exhaustion. Ultimately, the 5th Interested Party asserts that the Petitioners’ application has failed to meet the threshold for grant of conservatory orders.
6th Interested Party’s Case
48. In reply, the 6th Interested Party filed its Grounds of Opposition dated 15th May 2025 on the premise that:
i. The instant application is an abuse of the Court process, fatally defective and hence ought to be struck off and/ or dismissed with costs.
ii. The Application is superfluous and a clog in judicial time and processes as the 6th Interested Party applied for the position as advertised, handed in the academic credentials; attended the interview as publicly aired; and shortlisted for confirmation.
iii. The 6th Interested Party was vetted by IEBC selection panel and IEBC is not a party to the suit.
iv. The Application has been overtaken by events and is absurd because the IEBC Selection panel has already been disbanded.
v. The said List of Nominees complied with the requirements of Section 5 of the Independent Electoral Boundaries Commission Act.
vi. Section 5 of the Independent Electoral Boundaries Commission Act provides a membership limited to seven (7) members hence it is impractical to represent all ethnic groups or achieve complete regional or ethnic balance in Kenya on the Independent Electoral Boundaries Commission.
vii. Section 5 of the Independent Electoral Boundaries Commission Act does not set out a strict formula for achieving ethnic and regional balance in a body limited to seven (7) members hence that discretion is left to the selection panel
viii. The principle of inclusiveness under Article 10 of the Constitution was complied with in context of selecting nominees to the Independent Electoral Boundaries Commission as provided for under the Independent Electoral Boundaries Commission (Amendment) Act, 2024, which contemplates a broad diversity particularly regarding gender and integrity as opposed to the selection of specific nominees based on their regional locality, although the discretion is entirely bestowed on the respective bodies.
ix. Article 54(2) of the Constitution is framed in a language envisaging progressive realization, to ensure that no less than 5% of public bodies comprise of persons with disabilities. This requirement means that an appointing authority must take active steps to search for and include qualified candidates with disabilities, subject to the size and nature of the body.
x. Section 107 and 108 of the Evidence Act require the Applicant to prove that qualified persons living with disability applied or were interviewed but were overlooked or that the selection panel acted in bad faith or in deliberate disregard of known disabled candidates who met the qualifications listed under Section 6 of the Independent Electoral Boundaries Commission Act.
xi. The Applicant has failed to satisfy and/ or provide the provisions of the law the 6th Interested Party has violated.
xii. The Applicant’s Application is premised to deny the 6th Interested Party enjoyment of the fruits of the selection panel’s outcome and to serve the nation as a qualified commissioner contrary to Section 4 of the Independent Electoral Boundaries Commission Act.
xiii. There is no prejudice that will be occasioned upon the Applicants.
xiv. The Application ought to be struck out or dismissed with costs to the 6th Interested party.
7th Interested Party’s Case
49. The 7th Interested Party in response filed Grounds of Opposition dated 18th May 2025 as follows:
i. The Affidavit sworn on 13.05.2025 and the Further Affidavit sworn on 15.05.2025 are argumentative and disclose no issues of facts capable of being responded to by the 7th Interested Party. As such, there is neither a legal nor viable cause of action by the Petitioners as against the 7th Interested Party. The 7th Interested Party should be struck out from these proceedings in accordance with Section 5(d)(i) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules.
ii. Notice of Motion and the Petition are drafted in an omnibus manner. The process of shortlisting and nomination was conducted on the basis of individual qualification and merit. The omnibus manner in which the Petitioners gravamen is espoused is prejudicial and unfair to the candidature 7th Interested Party whose process of shortlisting and nomination the Petitioners find no issue with.
iii. The Notice of Motion and the Petition violates the doctrine of judicial restraint as it invites this Court to interfere with the constitutional and statutory mandate of constitutional institutions and mechanism - This is supported by the Supreme Court in Speaker of the Senate & Another v Attorney-General & 4 Others [2013] KESC 7 (KLR) where the court emphasized the need for courts to be cautious not to usurp the role of Parliament unless there is a demonstrated breach of the Constitution; In Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others[2014]KESC 9(KLR) the Supreme Court ruled that decisions by constitutionally established vetting bodies should not be interfered with lightly so as to uphold the mandate of independent institutions and further, the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others[2013]KECA 445 (KLR) emphasized that Courts should not substitute their judgment for that of the appointing authorities.
iv. The Notice of Motion and the Petition violates the doctrine of separation of powers as it invites this Court to determine the outcome of a process within the exclusive legal mandate of Parliament:
a. Article 250(2) that requires chairpersons and each member of a commission, and the holder of an independent office, to be identified and recommended for appointment in a manner prescribed by national legislation, approved by the National Assembly and appointed by the President.
b. Section 7 and 10 of the Public Appointments (Parliamentary Approval) Act that requires Parliament to consider the procedure used to arrive at a nomination, any constitutional or statutory requirements relating to the office in question, the suitability of the nominee and being clothed with the powers to reject any such nominees after such consideration.
c. This is a direct mandate and process entrusted to Parliament and it has already called for public participation vide submission of memoranda including supporting affidavits on oath contesting the suitability of any the Nominees as provided for under Section 6 of the Public Appointments (Parliamentary Approval) Act.
d. Therefore, the Notice of Motion and the Petition are premature and if at all the same was to be in issue, it would have sufficed as a memorandum submitted before the Departmental Committee on Justice and Constitutional Affairs in Parliament for consideration rather than a matter before this court.
e. The Supreme Court in Justus Kariuki Mate & another v Martin Nyaga Wambora Wambora & another [2017] KESC 1 (KLR) cautioned against undue interference with running processes in other arms of Government and that the doctrine of separation of power which bars interference with the Parliament's internal arrangements and procedures; The Supreme Court in Speaker of the Senate & another v Attorney-General & another; Law Society of Kenya & 2 others[2013]KESC 7 (KLR) equally held that the Parliament has a right under article 117 and 124 of the Constitution to regulate its internal affairs, courts cannot supervise the workings of Parliament and that the institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another.
v. The Notice of Motion and the Petition does not specifically state how the application, shortlisting and nomination of the 7th Interested Party violates the national values and principles of government under Article 10; the values and principles of public service under Article 232; the specific qualifications required by the Constitution or national legislation that the 7th Interested Party did not meet under Article 232(3); or how her nomination violates the regional and ethnic diversity of the people of Kenya under Article 232(4).
Indeed, the 7th Interested party is a woman from the Bajuni Community, a minority group but was also professionally and academically qualified to be a member of the Commission and her presence amongst the nominees reflect the regional and ethnic diversity in this Country within the provisions of Paragraph 6 in the 1st Schedule of the Independent Electoral and Boundaries Commission Act.
a) Further, there are no sufficient grounds or evidence on the face of the Notice of Motion and the Petition to support the allegation that the shortlisting and nomination of the 7th Interested Party violated the guiding principles of leadership and integrity under Article 73(2) (a) or that she failed to meet the eligibility criteria set out under Article 88(2) (a).
b) That the Notice of Motion dated 03.05.2025, Petition dated 13.05.2025 and the Further Affidavit sworn on 15.05.2025 are consequently incompetent, incurably defective and an abuse of the court processes and should be dismissed with costs to the 7th Interested Party.
Petitioners’ Submissions
50. The Petitioners through Douglas and Associates Advocates filed submissions dated 17th May 2025 and set out the issues for discussion as: whether the preliminary objections are merited and whether the Petition deserves conservatory orders.
51. On the first issue, Counsel submitted that the Petition was chiefly opposed on the ground of being premature thus unjustifiable. It was asserted that these objections lack merit as Article 22 and 258 of the Constitution provide that one has a right to institute a suit where they believe their fundamental rights are threatened with violation. As a result, Counsel argued that the Petitioners are not required to wait until a bre
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