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Post Reply: High Court Validates IEBC Appointments but Declares President Ruto's Gazette Notice Unlawful

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on July 11, 2025, 6:00 am</div><div id="pl-6931"  class="panel-layout" ><div id="pg-6931-0"  class="panel-grid panel-no-style" ><div id="pgc-6931-0-0"  class="panel-grid-cell"  data-weight="1" ><div id="panel-6931-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
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	<p dir="ltr" data-pm-slice="1 1 []">In a significant ruling on Thursday, July 10, 2025, a three-judge bench of the High Court in Nairobi upheld the nominations of the Independent Electoral and Boundaries Commission (IEBC) chairperson and commissioners but declared their formal appointment by President William Ruto unconstitutional. The decision, delivered by Justices Roselyne Aburili, John Chigiti, and Bahati Mwamuye, centered on the violation of a court order that barred the gazettement of the appointments. This landmark ruling has far-reaching implications for Kenya's electoral process as the country prepares for the 2027 general elections.</p>
<p dir="ltr">The court's decision addressed Gazette Notices No. 7724 and 7725, issued on June 10, 2025, which formalized the appointment of Erastus Edung Ethekon as IEBC chairperson and six commissioners: Ann Njeri Nderitu, Moses Alutalala Mukhwana, Mary Karen Sorobit, Hassan Noor Hassan, Francis Odhiambo Aduol, and Fahima Araphat Abdallah. These notices were quashed because they contravened interim conservatory orders issued on May 29, 2025, by Justice Lawrence Mugambi. The orders had prohibited the government from gazetting the appointments until a constitutional petition challenging the recruitment process was resolved. The judges emphasized that the president's actions disregarded judicial authority, rendering the gazettement null and void.</p>
<p dir="ltr">Despite nullifying the gazette notices, the court found no fault in the nomination process itself. The bench dismissed a petition by activists Kelvin Roy Omondi and Boniface Mwangi, who had challenged the constitutionality of the appointments on grounds of procedural flaws, lack of public participation, regional imbalance, and eligibility concerns. The judges ruled that the claims lacked sufficient evidence to invalidate the selection, nomination, and vetting of the seven appointees. They noted that the selection panel adhered to constitutional standards, including requirements for ethnic and regional diversity and inclusivity.</p>
<p dir="ltr">The petition raised specific concerns about the eligibility of certain nominees. For instance, it alleged that Ann Nderitu, the Registrar of Political Parties, was a state officer, disqualifying her from the IEBC role. Similarly, Mary Karen Sorobit's prior role as a county chairperson for the Jubilee Party and Hassan Noor Hassan's candidacy for the Mandera governor seat in 2022 were cited as violations of Article 88(2) of the Constitution, which bars individuals with recent political affiliations from serving as IEBC commissioners. The petitioners also questioned Erastus Ethekon's impartiality due to his past professional ties to State House Deputy Chief of Staff Josphat Nanok. However, the court rejected these arguments, stating that past professional engagements do not automatically disqualify nominees and that no concrete evidence of bias or procedural violations was presented.</p>
<p dir="ltr">The ruling clarified that the issue was not the suitability of the nominees but the timing and manner of their formal appointment. The judges lifted the conservatory orders, paving the way for President Ruto to issue a fresh gazette notice in compliance with the law. This step will allow the nominees to take their oath of office before Chief Justice Martha Koome and assume their roles at the IEBC. The court also ordered each party to bear its own legal costs, citing the public interest nature of the case.</p>
<p dir="ltr">The decision comes at a critical time for Kenya's electoral landscape. The IEBC has been without commissioners since January 2023, following the resignation of the "Cherera Four" and the retirement of former chairperson Wafula Chebukati and commissioners Boya Molu and Abdi Guliye. The absence of a fully constituted commission has delayed key electoral processes, including voter registration, boundary reviews, and by-elections in constituencies such as Baringo, Banissa, Magarini, Ugunja, Malava, and Mbeere North. The reconstitution of the IEBC is seen as essential for ensuring credible elections in 2027.</p>
<p dir="ltr">The ruling has sparked varied reactions. Supporters of the decision view it as a victory for the rule of law, emphasizing the judiciary's role in checking executive overreach. Critics, however, argue that the nullification of the gazette notices could further delay the IEBC's operations, potentially undermining preparations for the upcoming elections. Some legal experts have expressed concern that the president's initial defiance of the court order risks eroding public trust in state institutions.</p>
<p dir="ltr">The controversy began in May 2025 when Omondi and Mwangi filed their petition, alleging that the nomination process lacked transparency and violated constitutional principles under Articles 10, 232, and 250. They also claimed that President Ruto failed to consult opposition parties as recommended by the National Dialogue Committee (NADCO). On May 19, 2025, Justice Mugambi issued conservatory orders halting the vetting and gazettement of the nominees, though he later allowed the National Assembly to proceed with vetting on May 29. Despite this, President Ruto gazetted the appointments on June 10, prompting accusations of contempt of court. The High Court, however, rejected an oral application to cite the president and other officials for contempt, citing procedural deficiencies and the need for due process.</p>
<p dir="ltr">As Kenya moves forward, the focus will be on the swift regularization of the IEBC appointments to restore stability to the electoral body. The court's decision underscores the delicate balance between executive authority and judicial oversight, reinforcing the importance of adhering to constitutional processes in public appointments. With the 2027 elections looming, all eyes will be on how the government and the IEBC navigate these challenges to ensure a transparent and credible electoral process.</p>
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