IEBC commissioners cannot be individually enjoined as respondents - Kindiki Kithure

Lawyer Prof Kindiki Kithure. [Jenipher Wachie, Standard]

Independent Electoral and Boundaries Commission (IEBC) commissioners Juliana Cherera, Abdi Guliye, Boya Molu, Justus Nyang'aya, Francis Wanderi and Irene Massit should be struck off from Azimio la Umoja's petition against President-elect William Ruto at the Supreme Court.

This is according to President-elect Ruto's lawyer Prof Kithure Kindiki and United Democratic Alliance (UDA) Director of Campaigns Josphat Nanok.

In a motion filed under a certificate of urgency dated August 27, 2022, Kindiki and Nanok said the six cannot be enjoined individually as respondents in the Azimio petition as the August 9 General Election was held by IEBC and not by individual commissioners.

IEBC is split into two factions pitting Chebukati, Guliye and Molu against Cherera, Wanderi, Massit and Nyang’aya. The latter claim that the August 9 poll was a sham as some aspects of the electoral process were opaque. Claims refuted by the Chebukati-led side who allege the dissenting four who disowned the presidential results connived to subvert the will of the people.

According to Kindiki, IEBC vice-chair Cherera, Massit, Wanderi and Nyang'aya are at loggerheads with IEBC Chairman Wafula Chebukati and intend to use their response to advance their accusations, new claims and innuendos that are solely intended to prejudice Ruto.

According to Kindiki, the four commissioners are proxies who were enjoined so as to create second-tier petitioners and are masquerading as respondents against Article 140 of the constitution.

UDA Director of Campaigns Josphat Nanok. [David Njaaga, Standard]

“The timeline to respond is for all respondents to file responses at the same time. Consequently, the 9th respondent [Ruto] will be denied any opportunity to answer the second-tier accusations made by the 3rd to 6th respondents. The 9th respondent’s right to a fair trial as conferred under Article 25 (C) will be irreversibly compromised,” said Kindiki.

In his affidavit, Nanok averred that Article 140 envisages a precise and concise issue that challenges the election of the President-elect and Deputy President-elect and that complaints between commissioners should not be included in such a petition.

“I am aware that the 3rd to 6th respondents are uncomfortable with the electoral victory of the 9th respondent [Ruto]; indeed, these commissioners have publicly stated their opposition to the 9th respondents’ victory,” said Nanok.

 According to Nanok, the respondents, Juliana Cherera, Abdi Guliye, Boya Molu, Justus Nyang'aya, Francis Wanderi and Irene Massit, must be struck out and any pleadings by them expunged from the record.

“Accordingly, the four commissioners are in true sense petitioners and or proxies of the petitioners ingeniously included to be part of the respondents so as to compromise the 9th respondent’s defence,” said Nanok.