The search for a new Independent Electoral and Boundaries Commission (IEBC) Secretary/Chief Executive Officer has run into another legal challenge after a Malindi court stopped the recruitment process, putting the planned interviews for nine shortlisted candidates on hold.
Justice J.N. Abuodha of the Employment and Labour Relations Court (ELRC) issued the temporary orders on Thursday, November 5, after certifying as urgent a petition filed by Thomas Kennedy Balala.
In the ruling, the judge granted conservatory orders barring further action in the recruitment exercise until the matter is heard by both parties on November 17.
The decision effectively suspends interviews that had been scheduled for November 12 and 13, leaving the selection process in limbo pending further directions from the court.
The nine candidates shortlisted for the position are Anthony Omerikwa, Halakhe Waqo, Harley Mutisya, Edmund Odiwuor Malitt, Andrew Gitau Kimani, Mohamed Abdullahi Abdi, Edward Katama Ngeywa, Martina Wato Yattani and Nelly Ilongo.
The Malindi case comes as the electoral commission faces another legal battle at the High Court in Nairobi over its decision to involve KPMG Advisory Services Limited in the recruitment process.
In that separate petition, Dr Augustus Kyalo Muli and the NLP party are challenging the commission's decision to hand the consultancy firm key responsibilities in the selection of its next chief executive.
The petitioners have questioned IEBC's decision to engage KPMG to manage what the commission described as an end-to-end recruitment exercise, covering the advertisement of the vacancy, receipt of applications, longlisting, verification of applicants and shortlisting.
On Wednesday, November 4, Justice R.E. Aburili declined to certify the Nairobi petition as extremely urgent for consideration without hearing the other parties. The judge instead directed that the case be mentioned on November 11.
At the centre of the Nairobi petition is whether the electoral commission can delegate major recruitment responsibilities to an external consultancy without going against the Constitution and its independent mandate.
The petitioners have relied on Article 250(12) of the Constitution and Section 10 of the IEBC Act to challenge the arrangement.
They are also seeking access to documents explaining how the recruitment was organised, including the agreement between IEBC and KPMG, the scoring matrix used to assess applicants, the commission's resolution approving the consultancy's engagement and details of the financial terms involved.
Reacting to the orders issued in Malindi, Muli welcomed the court's intervention, saying it strengthened the concerns raised in the Nairobi case.
“We welcome the Malindi orders. They confirm prima facie urgency. However, since IEBC contests ELRC jurisdiction over Article 250(12) appointments, we will still urge the Constitutional Court in Nairobi on 11 November to grant sustainable protection,” he said.
The two cases present separate but connected legal questions surrounding the recruitment, particularly the courts' authority to intervene and the extent to which IEBC can assign recruitment duties to an outside firm.
While the Nairobi case is expected to address the constitutional questions surrounding the commission's engagement of KPMG, the Malindi orders remain in force until the matter comes up for an inter partes hearing on November 17.