Independent Electoral and Boundaries Commission (IEBC) lawyer Anthony Milimu Lubulellah with lawyer James Orengo before Justice George Odunga on Wednesday December 21,2016.


The controversial Sh2.5billion tender for the supply and delivery of crucial election materials can now be kick-started afresh by the Independent and Boundaries Commission (IEBC).

The Court of Appeal has dismissed an application by a previous successful bidder of the lucrative deal-Al Ghurair Printing and Publishing Company-seeking to suspend the exercise pending the outcome of its appeal challenging its recent invalidation.

The Dubai-based firm is still eligible to participate in the fresh-tendering process and has an alternative remedy in damages subject to proof that it has suffered any financial losses, Appellate Judges Alnashir Visram, Wanjiru Karanja and Jamila Mohamed ruled last Friday.

“The General Election is scheduled to take place on August 8, 2017, which is fast approaching. In our view, there is a likelihood that the orders sought would interfere with preparations by the IEBC for the polls. It is, therefore, in the public interest for the elections to take place during the scheduled date,” the three-Judge bench held.

The aggrieved firm has seven days to file its appeal against the February 13 decision by High Court Judge George Odunga, who quashed the tender for the supply and delivery of ballot papers, election result declaration forms and poll registers.

Justice Odunga had ruled that it was unreasonable for the IEBC to have proceeded with the award of the tender after the President had disbanded the previous nine-member team, chaired by Ahmed Hassan Hussein, and advertised for its replacement on October 5, last year. The legal regime governing the national elections agency was eventually restructured and a new seven-member team recruited, the Judge observed.

The award of the tender was conducted in a vacuum since the IEBC leadership was on a transition and its secretariat had no power to sign the contentious contract or award the lucrative tender, Justice Odunga pointed out, when he allowed a petition by the Coalition for Reforms and Democracy (CORD), challenging the action.

The IEBC could not lawfully discharge its mandate during the momentous period when there was public uproar over the membership of the IEBC leadership and the subsequent agreement by the warring parties for the appointment of a new team to oversee the August polls, the Judge observed.

The Judge had found that the contentious tender had not taken into account the current electoral legislative framework whose purpose is to ensure that the constitutional threshold of a free, fair and transparent election is achieved.

Cord had sued the IEBC and the Public Procurement Administrative Review Board (PPARB) claiming the award of the tender was illegal since the specification of the ballot papers did not conform to requirements of the election laws and integrated electronic electoral system.

The restructured election laws facilitated both electronic voter identification and electronic transmission of  results.