Court overturns nomination of Dorothy Jemator to IEBC panel

Ms Jemator had been nominated by a faction of the Law Society of Kenya (LSK) governing council led by CEO Mercy Wambua to represent the organisation in the seven-member selection panel.  She was subsequently appointed by President Uhuru Kenyatta.

But Justice George Odunga has quashed both the nomination and appointment saying the organisation’s representative should be lawyer Morris Kimuli who had been nominated by LSK president Nelson Havi.

The ruling is a major win for Mr Havi who is struggling to assert his control for the organisation after eight of the 13 LSK council members turned against him and ‘suspended’ him over alleged gross misconduct.

As a result of the court’s decision, PSC is expected to forward Mr Kimuli’s name to the President for appointment so that he can join the selection panel as the LSK representative.

Justice Odunga noted that Mr Havi, as the LSK president, forwarded Mr Kimuli’s name to the Parliamentary Service Commission (PSC) on April 16, 2021 only for the CEO to forward Ms Jemator’s name on April 21.

He was ruling on a petition filed by lawyer Alfonse Kilonzo. The lawyer questioned how the PSC proceeded to submit Ms Jemator’s name to the President.

The judge observed that PSC did not contest the fact that it received Mr Havi’s communication regarding the nomination of Mr Kimuli earlier than that from Ms Wambua.

Contention of PSC was that having received two sets of nominations, it was entitled to decide which one to rely on and it chose the one that seemed to have been supported by the minutes. The commission is chaired by National Assembly speaker Justin Muturi.

However, justice Odunga said PSC failed to provide a legally justifiable reason on why it decided to ignore the earlier nomination in favour of the later one. Role of PSC, he said, was to transmit the name to the President.

“It has no business deciding who is properly nominated by the LSK. Having received the name of Kimuli before that of Jemator, it was bound by statute to submit that name to the President,” said the judge.

By purporting to arbitrate and decide who between Kimuli and Jemator ought to have been nominated, the court said PSC clearly acted in excess of its powers.

“In so doing, it made a decision which violated the rights of Kimuli without affording him an opportunity of being heard. It has been held that a decision made in excess of or without jurisdiction or in violation of the rules of natural justice is a nullity,” the court stated.

Being a nullity, all consequential decisions must fall by the wayside since you cannot expect to place something on nothing and expect it to stand.

In fighting Ms Jemator’s nomination, the petitioner told court that she is a State officer serving in three government offices.

He said she serves as a judicial officer, having been appointed as a member of the Energy and Petroleum Tribunal on March 3, 2020 for a period of three years. She also serves at the HIV and AIDS tribunal, having been appointed as a member on May 23, 2019 for a period of three years.

The petitioner added that Ms Jemator is a member of the Building Bridges Initiative (BBI) Steering Committee as a technical expert having been appointed on January 3, 2020 by the Head of the Public Service.

He also said she is a known member and official of the Jubilee Party and also acts for the Independent Electoral and Boundaries Commission (IEBC).

“The Jubilee Party is well represented in the PSC which will also submit its own four nominees to the Selection Panel. It cannot be lawful or proper for the Jubilee Party to be represented in the Selection Panel again, by a nominee unlawfully fronted through the LSK,” said the petitioner.

[email protected]