Justice Mrima: Chenro mar walo kod yiero mar Kithure Kindiki kaka jalup jatend piny ok dwar IEBC

[00:00:00]challenge to the IBC was advanced on two related grounds. First, that IBC was constitutionally incapacitated by the absence of commissioners at the material time such that any verification of his Excellency's qualifications being a substantive commission-led function under Article 250 sub-article 1 could not lawfully be performed by the secretariat alone. And second, that the clearance process was consequently a nullity that fatally infected the nomination.

[00:00:35]The respondents, however, maintained that the midterm replacement mechanism under Article 149 sub-article 1 was a sui generis self-executing constitutional process that did not engage the IBC electoral mandate under Article 88 sub-article 4. And that the re- the strict eligibility and clearance protocols under Articles 99 and 137 applied exclusively to general elections and not to midterm nomination vetted directly by the National Assembly.

[00:01:12]Our reading of Article 149 sub-article 1 confirms that it is unambiguous, express, and self-contained.

[00:01:21]It establishes a strict executive legislative process where the president nominates and the National Assembly votes on the deputy president nominee.

[00:01:32]It makes no reference to IEBC. That omission is not an oversight.

[00:01:39]It is a deliberate constitutional choice which the court which this court must give full effect. Were it the intention of the drafters to impose a more stringent requirement, nothing would have been easier than to say so expressly as they did in articles 99 and 137 in respect to candidates for elective office at a general election.

[00:02:04]The absence of any equivalent requirement in article 149 subarticle 1 is therefore a considered constitutional choice to be respected. For ease of reference, article 149 subarticle 1 provides as follows and I quote, "Vacancy in the office of Deputy President.

[00:02:25]Within 14 days after a vacancy in the office of Deputy President arises, the President shall nominate a person to fill the the vacancy and the National Assembly shall vote on the nomination within 60 days after receiving it."

[00:02:39]From a plain reading of the above, we are convinced that no clearance was required by the Deputy of the Deputy President and that the vote by the National Assembly was an expression of representative authority by the sovereign's elected representative.

[00:02:57]Precisely the constitutional mechanism that article 149 subarticle 1 contemplates.

[00:03:03]Under article 1 of the Constitution, sovereign power belongs to the people of Kenya and may be exercised either directly or through their democratically elected representatives. When the National Assembly voted on His Excellency Kindiki's nomination, it did so as the constitutional repository of delegated sovereign authority acting on behalf of the people in accordance with the specific mechanism the Constitution provides for filling in a midterm vacancy in the office of the Deputy President.

[00:03:39]We equally accept the respondent's submissions that on the deliberate use of the word vote in article 149:1 as opposed to the words approve or vet that the constitution employs in other contexts.

[00:03:54]That distinction is constitutionally significant. Across the constitution, we note that the word approve is used where parliament exercises a confirmatory function in relation to executive appointments as in the approval under Article 132 sub-article 2 of cabinet secretaries, the Attorney General, the secretary to the cabinet, the principal secretary, the high commissioners, ambassadors, and diplomatic consular representatives, as well as any other state or public officer whom the constitution requires or empowers the president to appoint or dismiss. The same applies to the approval of the candidates for constitutional offices such as the Chief Justice under Article 166 of the constitution. In those contexts, approval connotes a deliberate and structured vetting exercise in which parliament accesses the suitability of the nominee against a prescribed criterion and in which the IBC or other constitutional bodies may have a role to play in verifying qualifications. The word vet carries similar connotations of structured scrutiny against defined standards.

[00:05:14]The word vote, by contrast, denotes denotes a direct and immediate exercise of collective democratic will.

[00:05:23]It is the language of elections and of sovereign determination.

[00:05:28]It's used in Article 149 sub-article 1 signals that the National Assembly's function in the midterm replacement process is not to sit in the judgment of the nominee's suitability, but to exercise on behalf of the people a direct democratic determination on whether the president nominee nominee should fill the vacancy. That the nomination is political and representative in character and it is expressed uh through the ballot of elected members of parliament, each of whom is accountable to their constituents for the vote they cast.

[00:06:06]It consequently follows that no input or intervention by the IBC was constitutionally required in the midterm replacement process under Article 149 (1). The absence of any IBC involvement would not have rendered the nomination or the filling of the vacancy unconstitutional.

[00:06:26]The informational input by the IBC Secretariat did not provide uh uh the provide was in those circumstances entirely voluntary in character. It was not a condition precedent to the validity of the process and its presence or absence was constitutionally irrelevant to the outcome. That being so, the fact that the input was provided by the Secretariat in the absence of commissioners is equally irrelevant. If the input was not required at all, the question of whom within the IBC provided it simply does not arise.

[00:07:03]For completeness, however, and to the extent that any residual question remains about the lawfulness of the Secretariat's involvement, we are satisfied that the informational verification performed by the Secretariat could not have contained constituted a clearance in the electoral sense, but rather a routine administrative task and as such not constitutional or policy-driven. The same was legally permissible and procedurally valid and fell squarely within the Secretariat's lawful administrative mandate. We draw from the advisory opinion uh number four of 2024 IBC and the honorable AG where the Supreme Court gave guidance on the dichotomy that exists between the role of the commissioners and that of the secretariat in the following words.

[00:07:54]And I quote, the secretariat under the leadership of the commission secretary and the CEO is empowered to undertake routine administrative and operational tasks essential for the day-to-day functioning of the commission. In the same vein, it is necessary to clarify that the absence of commissioner does not of itself vitiate or invalidate administrative actions taken by the secretariat within the scope of its lawful mandate including the execution of contracts, management of person personnel, procurement, and other functions necessary for institutional continuity. Such acts remain valid and binding and provided they fall within this bounds of statutory delegation and do not purport to usurp the constitutional function of the commission as a corporate body. End of quote. To guard against institutional overreach, the Supreme Court carefully delineated where IBC's administrative mandate ends as follows and I quote once again.

[00:09:02]Having concluded as above, a clear distinction must be drawn between administrative continuity by the secretariat and the exercise of constitutional authority vested in the commission as a collegial entity. It is our considered view that the exercise of constitutional function expressly reserved for commission such as those enumerated under article 88 sub-article 4 of the constitution cannot be lawfully discharged in the absence of a properly constituted commission with the requisite quorum as contemplated under article 250 sub-article 1 and sub-article 2 of the constitution end of court. This differentiation of responsibility is further contained in section 11A of the independent electoral and boundaries commission act and exposed by the Supreme Court in the Muruli versus Oparanya and three others case.

[00:10:02]For all these reasons, it is our finding that the secretariat did not travel beyond its mandate. It simply functioned as an information repository.

[00:10:16]Having so found, we now move to the last sub issue concerning