The three judges bench led by presiding Judge George Odunga Joel Ngugi and John Mativo also directed the Independent Electoral and Boundaries Commission (IEBC) to start the tendering process afresh.
They said that the commission, as an independent body, should have engaged all presidential candidates in the decision leading to the choice of Al Ghurair printing & Publishing through direct procurement.
They, however, declined to cancel the printing of the other ballots for the Member of County Assembly, Member of the National Assembly, senator and governor slots because there was no dispute concerning them.
In their ruling, the judges said the commission had failed to ensure public participation in awarding the tender to Al Ghurair as required by the law.
“It is necessary to ensure that election systems are free, fair and transparent. The systems should be secure and results announced promptly.
Appropriate structures should be put in place to avoid electoral malpractice,” they ruled. The judges also rejected an application by IEBC lawyers led by Fred Ngatia for a stay of execution pending appeal on Monday saying those aggrieved by the ruling can seek redress in the Court of Appeal.
They argued that it is not impossible for IEBC to start the process again in order to conduct free, fair and credible election.
The judges, however, dismissed claims by the opposition National Super Alliance (Nasa) that the firm met President Uhuru Kenyatta and could thus have influenced the award of the tender.
“We have not seen any evidence that there was a meeting between the President and the officials of Al-Ghurair, newspapers cuttings are insufficient to be used as evidence in a matter and therefore the allegations by Nasa that there was a meeting between president and Al-Ghurair is below threshold,” they said.
Al-Ghurai Printing and Publishing LLC through its managing director Ganapathy Lakshmanan says that as of now IEBC has received 50 percent of the required paper on 22 June this year adding that the electoral commission will further receive the outstanding papers by 1st week of July 2017.
“It is noteworthy that 80 percent of the governor elections ballots and 25 percent of women representatives are completed by the time of swearing this affidavit. The production process for the materials has therefore started in earnest,” says Ganapathy Lakshmanan
Lakshmanan says that the company’s shareholders, directors and members of its staff have never visited the state House of Kenya or signed any agreements with any Kenyan entities at a state function whether in Kenya or Dubai.
“The applicant has not placed any evidence to demonstrate that there was secrecy in the process of direct procurement, “argues Al-Gurarir
Further the printing firm argues that the decision by IEBC to award the contract and thereafter sign the contract on the 8th June this year is reasonable and lawful.
The Managing Director of the Dubai based firm dismissed allegations that the company is affiliated to Al Ghurair Holdings saying that it is a separate and distinct legal entity.
In its response the firm says that NASA’s intentions are merely to block the procurement process and to occasion unnecessary delays in the process for reasons totally unconnected to the allegations by NASA.
In defending itself the company says that it has supplied voting materials to clientele in various countered including Uganda, Zambia, Central Africa Republic, Nepal, Haiti, Guinea, Libya,Madagascar, Iraq, Burundi, Egypt, Sudan, South Sudan and Rwanda.
The ruling party Jubilee party also asked the court to dismiss NASA suit.
According to the ruling party, the relationship between IEBC and Al Ghurair is one in contract and unless a Public duty has been breached it ought not to be a subject of a judicial review application.
Jubilee says NASA has failed to make full and candid disclosure that IEBC met political parties including members of NASA where they were informed of the plan to directly procure Al Ghurair to print ballot papers and the reason for the decision
Further the party says that the president is in discharge of his functions is entitled to engage any development partners of Kenya or representatives of commercial concerns which are interested in doing business in Kenya.
The party says that the President meeting the Dubai Chamber of Commerce is a function squarely within the provisions and discharge of his duties as the Head of State and the Government.
