High court judge John Mutinga Mativo restrained Independent Electoral & Boundaries Commission (IEBC) from implementing party hoping laws pending hearing and determination of the petition filed by council of governors on February 23 ,2017.


Independent Electoral and Boundaries Commission (IEBC) has asked the court to dismiss the party hoping case filed by Council of Governors.

The electoral body said that the CoG have failed to demonstrate to the court how the impugned section 28 of the Elections Act 2011 as amended, infringes on the freedom of association.

IEBC claims that the impugned section 28 of the Election Act 2011 does not prohibit defection adding that it recognizes that a person is free to join participate in and even defect from party at any time including after the party primaries or nomination

“We urge this court to vacate the ex-parte conservatory orders issued on the 23rd of February 2015,”submoitted the AG” IEBC urged the court.

The commission further contends that section 28 is necessary and justifiable legal provision.

The High Court last month temporarily restrained Independent Electoral & Boundaries Commission (IEBC) from implementing party hoping laws pending hearing and determination of the petition filed by council of governors.

“I hereby stay the implementation of section 28 of the Elections Act NO. 24 of 2011 as amended by Provisions of the Elections Law (Amendment) Act 2017” ordered Judge Mativo.

In the suit, CoG wants the court to allow party hoping arguing that the law limits freedom of persons from making political choices contrary to the constitution.

CoG argues that the clause limits the freedom of association of Kenyans as provided for under the constitution.

Council of Governors through lawyer Peter Wanyama moved to court seeking orders to overturn a law that bars politicians from defecting to another party after losing in the primaries.

The council sued the Attorney-General and the Independent Electoral and Boundaries claiming that the Election Laws Amendment Act 2017 which kicked off on January 30 contains a problematic unconstitutional section.

The governors further claimed that Section 28 of the Elections Act requires that a political party submits its list of members to IEBC 120 days before polls, meaning a member cannot resign or join another party afterwards.

The judge directed that the Attorney General’s submissions were inconsequential as its the Petition that was being prosecuted.

He gave the 29th March at 230pm for highlight, 5 minutes for each advocate and will give judgement thereafter.

National Assembly and Attorney General were directed to file any documents before that time, failure to which the highlight and judgement will be issued nevertheless.

Judgement will be delivered at the of the month.