RETURNING OFFICERS IN THE REPEAT ELECTIONS ILLEGALLY IN OFFICE, BUT COURT DECLINES TO QUASH THEIR APPOINTMENT.

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Justice George Odunga.

BY SAM ALFAN.

High Court has ruled the appointment of 290 Constituency Returning Officers, Presiding officers were illegal.

Justice George Odunga this morning at 10:30 A.M in his 64 pages judgement found that the Independent Electoral and Boundaries Commission did not follow the law while appointing the poll officials.

“The Respondent was under a constitutional and statutory obligation pursuant to Regulation 3(2) of the Elections (General) Regulations, 2012 to provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations” said Odunga.

However, the judge declined to quash the gazette notice on the appointment of the election managers.

“Since there is no prayer seeking either the cancellation of the fresh elections due for 26th October, 2017 or their postponement, it would not be efficacious to grant the orders

herein in the manner sought” ruled Odunga.

The judge also declined to issue the orders sought to avoid sensitising the matter.

“Therefore without sanitising the said process, I decline to issue the reliefs sought herein in the exercise of my discretion not based on lack of merit, but on public interest” the judge ruled.

The judge further said IEBC did not provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations.

The case dated 19th October, 2017 was filed by Khelef Khalifa and Hassan Abdi Abdille who are public spirited

citizens and defenders of human rights seek an order to quashed a decision of the Respondent communicated  in the Kenya Gazette Notice 9977 Vol. CXIX, dated the 12th October 2017 titled Appointment of Constituency and Deputy Constituency Returning.

According to the two, the Respondent has made a decision by IEBC was done in bad faith and breach of the Constitution and the law has proceeded to purport to make the appointments of constituency and deputy constituency returning officers without following the laid down.

The two argued that the commission had acted unconstitutional since members of political parties, political parties and independent candidates were not  accorded an opportunity to make representations on persons to be appointed constituency and deputy constituency returning officers for the purposes of the 26th October 2017 fresh elections as required under the law.

In their view, the persons purported to be appointed through the impugned Notice cannot purport to conduct constituency elections in the constituencies, their purported appointment having been done in an illegal manner that is contrary to express provisions of the law.

They argued that the process leading to the impugned decision is illegal, procedurally unfair.

Justice Odunga noted Judgement is delivered despite today being a public holiday in pursuant to the authority of the Hon. The Chief Justice Ref. CJ/90 dated 24th October, 2017.

The case was filed by Mr Khelef Khalifa, the director at Muslim for Human Rights, who is also part of the team seeking to stop the Thursday repeat presidential election at the Supreme Court.

Notice of Appeal that has been filed to challenge Justice George Odunga decision.
Notice of Appeal that has been filed to challenge Justice George Odunga decision.

IEBC has filed a notice of appeal seeking to challenge Justice George Odunga ruling on returning officers.

According to the notice,IEBC says that it is dissatisfied with the judgement and wishes to appeal to the court of appeal.

Judge Odunga while declaring the appointment of the returning officers and their deputies illegal,declined to quash the gazette notice.

IEBC has filed a notice of appeal seeking to challenge Justice George Odunga ruling on returning officers.

According to the notice, IEBC says that it is dissatisfied with the judgment and wishes to appeal to the court of appeal.

Judge Odunga while declaring the appointment of the returning officers and their deputies illegal, declined to quash the gazette notice.

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