Lawyers representing two citizens challenging President William Ruto’s appointment of Independent Electoral and Boundaries Commission (IEBC) nominees are contemplating legal action against the Head of State and the Government Printer for alleged contempt of court.
Led by Senior Counsel Paul Muite, the legal team says it may also sue Attorney General Dorcas Oduor and National Assembly Speaker Moses Wetang’ula for allegedly violating a court order related to the appointments.
The development follows what the petitioners describe as a “willful disregard” of a conservatory order issued by the High Court.
The order barred the appointment, gazettement or swearing-in of seven individuals nominated by the President last month to serve as IEBC commissioners.
Reacting to the gazettement of the appointees following their approval by Parliament, Mr Muite termed the move a violation of court orders and a clear case of illegality.
The petitioners, Mr Kelvin Roy Omondi and activist Boniface Mwangi argue that President Ruto’s actions and the publication of appointments in the Kenya Gazette after the court order amount to contempt.
The seven appointees include Erastus Edung Ethekon (proposed chairperson) and commissioners Hassan Noor Hassan, Mary Karen Sorobit, Anne Nderitu, Moses Alutalala Mukhwana, Francis Odhiambo Aduol and Fahima Araphat Abdallah.
Their final step to officially assuming office is taking the oath of office, administered by the Chief Justice.
The contested court order was issued by Justice Lawrence Mugambi on May 29, 2025, following an inter partes hearing on the petitioners’ request for conservatory orders.
It explicitly barred the gazettement, oath-taking or assumption of office by the seven nominees, pending full determination of the case.
The order states: “That pending the hearing and determination of this petition, a conservatory order is hereby issued forbidding and/or preventing the gazettement, taking of oath or assuming office by the interested parties, namely: Erastus Edung Ethekon; Ann Njeri Nderitu; Moses Alutalala Mukhwana; Mary Karen Sorobit; Hassan Noor Hassan; Francis Odhiambo Aduol; Fahima Araphat Abdallah or any other person(s) as the Chairperson or Commissioners of the Independent Electoral and Boundaries Commission. For avoidance of doubt, the vetting and approval process in the National Assembly may proceed but is subject to this order.”
When parties appeared this week before a three-judge bench comprising Justices Roseline Aburili, John Chigiti and Bahati Mwamuye, the conservatory order was not lifted.
Mr Muite clarified that because the orders were granted after hearing both sides, the only recourse for a dissatisfied party was to file an appeal.
“The issue of vacating such an order only arises if it was issued ex parte. Here, both parties were present and heard,” he said.
In his earlier ruling, Justice Mugambi said the petitioners had met the legal threshold for conservatory orders.
“This case raises substantial questions of law, touching on the sovereignty of the people, and should be allowed to proceed without risk of prejudice,” he ruled.
The petitioners argue that President Ruto violated the Constitution in the nomination process by failing to ensure regional and ethnic balance, and not consulting the opposition party or coalition as required by law.
They also claim that neither the Selection Panel's report nor interview scores were made public, thus undermining transparency.
They further allege that Mr Ethekon, Mr Hassan, Ms Sorobit and Ms Nderitu were ineligible due to political bias or conflict of interest.
The petition notes that some had vied for political office in 2022, belonged to political parties, or held state offices at the time of their nomination, which violated constitutional provisions requiring neutrality and timely resignation from public roles.
“The nominations contravene the Constitution in that they are not representative of Kenya’s diverse communities and exclude persons with disabilities. They were made without prior consultation with the opposition, contrary to the National Dialogue Committee Report and the IEBC (Amendment) Act, 2024,” the petition states.
The petitioners also question President Ruto’s decision to select Mr Ethekon over Mr Edward Katama Ngeywa, another shortlisted candidate for chairperson and demand that reasons for the preference be disclosed.
Additionally, they take issue with the President’s rejection of candidates Mr Phillip Kakai (Kakamega), Mr Joseph Kyavoa (Kitui) and Mr Mohammed Abdullahi Abdi (Mandera/Nairobi), who had also been shortlisted for commissioner roles by the Selection Panel.
“The Selection Panel’s report and outcome of the interviews constituted important information to be shared with the public. It was unconstitutional for the President and the Selection Panel to fail to publicize the information relating to the performance of the candidates and the report on the interviews. The petitioners requested for the information pertaining to the interviews but their request was ignored,” reads the court papers.
Further, the petitioners say that regional balance was ignored, noting that both Mr Ethekon and Ms Sorobit hail from the Rift Valley, while both Lower and Upper Eastern regions were excluded entirely.
“The selection is not based on merit as some of the candidates did not achieve high scores in the interviews, and some have integrity issues while other candidates were irregularly added to the shortlist thus compromising the process and inviting the court’s sanction,” it states.
The petition is pending before the Milimani High Court and will be mentioned again on June 23 for further directions.
