CASE BRIEF

Judgment in a Constitutional Petition for Mandamus

Case                                            Linda Gakii Kiome v Independent Electoral and Boundaries Commission

Reference                                   High Court Constitutional Petition No. E008 of 2025

Court                                            High Court of Kenya at Meru

Coram                                         Hon. Mr. Justice S.M. Githinji

Interested Parties                       County Assembly of Meru (1st IP); County Government of Meru (2nd IP)

Judgment delivered                  19 May 2025

Nature                                         Constitutional petition for mandamus to compel clearance and gazettement of a Deputy Governor nominee

Outcome                                    Petition ALLOWED in terms of prayers (b) and (c)

Following the impeachment of the former Governor of Meru, Hon. Kawira Mwangaza, the Deputy Governor Rev. Isaac Mutuma ascended to the office of Governor, and our client, Linda Gakii Kiome, was nominated to fill the resulting vacancy in the office of Deputy Governor. The single obstacle that stood on the surface was a routine eligibility clearance, which the Independent Electoral and Boundaries Commission declined to issue, pleading that it had no quorate Commission and would act only if a court compelled it to do so. We acted for the Petitioner and, their interests being aligned, for the County Government of Meru as the 2nd Interested Party.

The matter carried an unusual complication. At the time of her nomination, our client was serving on the selection panel charged with recruiting new commissioners to the very Commission whose want of commissioners stood in her way. She could not lightly abandon that national assignment, yet the fourteen-day timelines in sections 32C and 32D of the County Governments Act threatened to run against her and extinguish the opportunity while she discharged duties in the selection panel.

On 19 May 2025 the Court allowed the petition in terms of prayers (b) and (c). It held that the Commission’s refusal to gazette a County Returning Officer to clear the Petitioner violated her constitutional rights and irrationally curtailed her legitimate expectation to serve. It issued an order of mandamus compelling the Commission to gazette a County Returning Officer within seven days, and directed that, should it fail to comply, the Petitioner would be deemed duly cleared and the approval process would resume from where it had reached. Each party was left to bear its own costs.

The petition turned on a single question, with costs following behind it: whether the clearance and gazettement of a duly nominated Deputy Governor is an administrative act that the Commission’s Secretary or Chief Executive Officer may perform independent of the composition or quorum of the Commission, or whether, as the Commission contended, it was a plenary function that a body without commissioners simply could not discharge.

Our strategy was less a frontal assault than a patient game of sequencing, and its opening instinct was counter-intuitive: for a season, we did not want our client cleared at all. What she needed first was time, and only afterwards a clearance. We therefore moved in stages, holding our strongest material in reserve until the moment was right to use it.

(a)  The two obstacles and the decision to play for time

We faced not one obstacle but two. The first was the Commission’s want of a quorum to clear the Petitioner. The second, less visible, was timing: our client was still discharging her duty on the IEBC selection panel, while the fourteen-day timelines in sections 32C and 32D threatened either to disqualify her or to force a premature, vetting-less deemed approval before she could properly assume office. An immediate clearance was therefore not in her interest. What she needed first was time.

(b)  Engineering the refusal and freezing the statutory clock

We wrote to the Commission seeking her clearance in the full expectation that it would decline, as it duly did. That refusal, far from being a setback, was precisely what we wanted, for it furnished the justiciable grievance on which we moved the court for conservatory orders that preserved the section 32C and 32D timelines, suspending the clock so that our client could complete her work on the selection panel without forfeiting her path to the deputy governorship. At this stage we deliberately stayed our hand: we did not press the Commission for clearance, and we pointedly withheld the line of authority in which it had been compelled to clear nominees despite having no commissioners. That ammunition was kept in reserve, to be deployed only when the timing suited our client, and not a moment before.

(c)  Reframing clearance as an administrative formality

When the moment came to press for clearance, we characterised it for what it truly is, the confirmation that a nominee meets the eligibility criteria under Article 180 of the Constitution, and severed that formality from the question of the Commission’s composition. Once clearance was understood as an administrative act rather than a deliberative decision of the full Commission, the absence of commissioners ceased to be an answer and became merely an excuse.

(d)  Anchoring the case in settled precedent

Only then did we bring forward the authorities we had earlier held back. We placed before the Court the Kisii decision, in which the very same Commission had pleaded the very same incapacity over a Deputy Governor vacancy, been compelled to act, and duly cleared a nominee who serves as Deputy Governor of Kisii to this day. We reinforced it with Maina & 12 others and the corrigendum approach of Mrima J, to the effect that gazettement by the Chief Executive Officer is a simple administrative act requiring no sitting of the Commission. We then turned that settled law to double use: because the path was already charted, the litigation had been made necessary only by the Commission’s refusal to follow it, which carried directly into our claim for costs.

(e)  The argument from equality

Our sharpest point was that the Commission had, without a single commissioner in place, established the eligibility of Professor Kithure Kindiki and cleared him to assume the office of Deputy President of the Republic. If it could clear the second highest office in the land without a quorate Commission, it could hardly claim to be powerless to clear a county’s deputy governor. To do for one and refuse the other was a plain affront to the right to equality under Article 27, and it was a comparison the Commission could not satisfactorily answer.

(f)  Neutralising the non-joinder objection

The Commission’s strongest procedural point was that its Chief Executive Officer ought to have been sued in his own name. We met it with Order 1 Rule 9 of the Civil Procedure Rules and Rule 5(b) of the Mutunga Rules, and with the simple proposition that the Chief Executive Officer is an employee of a body corporate that sues and is sued in its own name, and not a separate legal entity requiring separate joinder.

(g)  A united institutional front and a self-executing remedy

We marshalled the county’s own institutions behind the petition. The County Assembly and the County Government of Meru each filed in support, so that the Court was presented with the aligned voice of the county, framing the harm as a denial of representation to the people of Meru and engaging the political rights under Article 38 and the public interest. We then designed the remedy to be self-executing, seeking not a declaration that could be admired and ignored but an order giving the Commission seven days to act, failing which our client would be deemed cleared.

The Court accepted that the Petitioner’s nomination met the constitutional and statutory requirements and that the approval process had been unlawfully stalled. Drawing on Matuli & another v Independent Electoral and Boundaries Commission and Omwoyo v Independent Electoral and Boundaries Commission, it held that the absence of commissioners was a lacuna the Constitution never envisaged, and not a shield the Commission could raise to take advantage of a vacancy beyond the nominee’s control. Equity, it observed, sees as done that which ought to have been done. The objection that the Chief Executive Officer had not been joined was dismissed as harmless under Order 1 Rule 9 of the Civil Procedure Rules. The Court found that the refusal to act violated the Petitioner’s rights under Articles 19, 20, 22, 27, 38, 47, 180 and 258, that the law contemplates no vacuum in public office, and that, on the test in Anarita Karimi Njeru v Republic, equity will not suffer a wrong to be without a remedy.

The petition was allowed in terms of prayers (b) and (c). The Court issued a declaration that the Commission’s failure and inaction were unconstitutional, and an order of mandamus compelling it to gazette a County Returning Officer to clear the Petitioner within seven days. It further directed that, in default of compliance within that period, the Petitioner would be deemed duly cleared and the approval process before the County Assembly would proceed from where it had reached. Each party was ordered to bear its own costs.

The petition was won less by the force of any single argument than by the order in which the arguments were made. The masterstroke was patience: engineering the Commission’s predictable refusal, then using it to freeze the statutory clock through conservatory orders, so that our client could complete her national assignment without surrendering her place. Only once time had been secured did we press the substantive case, recasting clearance as a formality, deploying the authorities we had deliberately held back, and invoking the equality comparator of a Deputy President cleared without commissioners. To this we added a remedy engineered to enforce itself. The enduring lesson is that in public law, the sequencing of relief can matter as much as its substance: sometimes the first victory worth winning is simply time.

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