The Court of Appeal has set aside Justice George Odunga’s declaration that the appointment of returning and presiding officers was irregular and illegal.
Justices Erastus Githingi, Martha Koome, and Fatuma Sichale granted IEBC orders to the effect that the lot is validly in office.
“For the avoidance of doubt, this order means that the constitutional and statutory functions of the returning officers and their deputies relating to the presidential election slated for October 26 are not invalid,” the order states.
Odunga, in the case by Khelef Khalifa and Hassan Abdile, had held that the electoral agency did not follow due procedures in the appointment of the ROs set to man 290 polling stations in the repeat election.
The officials have already been deployed for the Thursday’s repeat presidential poll.
He made a finding that the Independent Electoral and Boundaries Commission violated Regulation 3(2) of the Elections (General) Regulations, 2012.
However, the judge declined to cancel the election as no orders were sought to that effect.
But IEBC, aggrieved with the decision, filed an appeal under a certificate of urgency on grounds the ruling would have rendered the repeat poll an exercise in vain.
The commission argued that the decision would have occasioned a constitutional crisis since the polls have to be done within 60 days as ruled by the Supreme Court on September 1.
“Having listened to counsel and having read the motion, this court has jurisdiction to grant exparte orders in prevailing circumstances and particularly to forestall a constitutional crisis pending the inter-parties hearing,” the judges ruled.
“The impugned decision of the High Court has the potential of rendering the presidential election irregular even before they are held,” the orders read in part.
The court suspended the declaration pending the determination of the appeal.
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