High Court judge Stephen Githinji further ruled that should the IEBC chief executive officer, Marjan Hussein Marjan, fail to gazette the returning officer within seven days from the date of the judgment, Ms Kiome shall be deemed to have been cleared by the commission and the Meru county assembly would proceed with her vetting and approval.
IEBC Chief Executive Officer Marjan Hussein Marjan.
Photo credit: File I Nation Media Group
The judge the nomination of Ms Kiome by Governor Mutuma M’Ethingia to be his deputy, met the constitutional and statutory requirements, but the completion of her approval was being unlawfully stalled by IEBC’s refusal to act.
“The court cannot declare itself powerless in the face of an obvious injustice, because it is enjoined by the provisions of Article 23 of the constitution to fashion appropriate reliefs to safeguard fundamental constitutional rights and freedoms,” the judge said.
The judge said the law does not contemplate a vacuum in any public office and therefore, public interest demands that the people of Meru County enjoy uninterrupted governance, service delivery and political stability.
“In the event of failure by the Respondent (IEBC) to comply with the prayers granted within 7 days, the petitioner (Ms Kiome) shall be deemed to have been cleared and the approval process by the 1st interested (county assembly) party shall proceed from where it had reached,” said the judge.
Lawyer Linda Gakii Kiome, who was also Vice-Chairperson of the IEBC selection panel. She has been nominated for the position of Meru Deputy Governor.
Photo credit: Dennis Onsongo | Nation Media Group
Ms Kiome was nominated by Mr M’Ethingia to be his deputy after he was elevated to be the Meru County boss following the impeachment of Ms Kawira Mwangaza.
The governor sought confirmation and clearance from IEBC on whether she was eligible, including whether she complied with Chapter Six of the constitution ahead of her vetting, which was scheduled for April 7.
She sought an order that the failure to clear her as duly nominated and eligible for approval was contrary to several articles of the constitution.
The commission did not clear her or gazette a county returning officer for purposes of establishing her eligibility and gazetting her name as the duly elected deputy governor.
She submitted that the failure to obtain the clearance documents from IEBC prejudices and jeopardises her chances of being approved by the Meru County assembly.
The county assembly, through its clerk, Mr Jacob Kirari, supported the petition, saying it was notified of the nomination of Mr Kiome and her name submitted for purposes of vetting.
Mr Kirari said a select committee settled on a date for her vetting and invited views from members of the public, but the exercise was postponed because IEBC had not issued Ms Kiome with a nomination certificate.
The county assembly added that Ms Kiome might be automatically approved without the input of members by operation of section 32(D0 and 3 (B) of the County Governments Act.
He said it was in the interest of the people of Meru for the orders sought, be granted.
The IEBC, through lawyer Charles Mwongela, opposed the case, arguing that the power to clear candidates lay with the commission and not an individual officer.
Mr Mwongela said the inaction was not as a result of arbitrariness or neglect of duty but rather a manifestation of adherence to the legal procedures.
He said the CEO was not a member of the Commission as defined under section 5 of the IEBC Act, hence cannot appoint a county returning officer for the purposes of clearing a candidate and conducting elections.
