Independent Electoral and Boundaries Commission v Attorney General (Advisory Opinions Application E004 of 2024) [2025] KESC 57 (KLR)
Delivered by: MK Koome CJ & P, PM Mwilu DCJ & VP, MK Ibrahim, N Ndungu, I Lenaola & W Ouko SCJJ on 5th September 2025
Background
The Independent Electoral and Boundaries Commission (IEBC) filed a reference on 4 July 2024 seeking an advisory opinion under Article 163(6) of the Constitution. At the time, IEBC had no Chairperson or Commissioners, the last having exited after the 2022 General Election. The Commission was only reconstituted on 11 July 2025.IEBC sought guidance on three questions: First whether its Secretariat could perform constitutional functions such as boundary delimitation in the absence of Commissioners ,secondly whether boundary review could proceed after the expiry of constitutional timelines under Article 89; and finally whether such timelines could be extended, and if so, by whom.The Attorney General (AG) opposed the reference, arguing that IEBC was not properly constituted when the reference was filed, that the questions were already pending in the High Court, and that the timelines had already lapsed, leaving only Parliament to resolve the issue through legislation or constitutional amendment.
Issues for Determination
The Supreme Court framed the following issues .First whether the Court had jurisdiction to render the advisory opinion despite IEBC being improperly constituted at the time of filing.Secondly whether IEBC could undertake delimitation of electoral boundaries and other electoral functions in the absence of Commissioners or quorum. Thirdly whether IEBC could conduct boundary review after constitutional timelines under Article 89 have lapsed and whether such timelines under Article 89 could be extended, and if so, by whom.
Court’s Determinations
On first issue of jurisdiction, the Court acknowledged that IEBC was not properly constituted when the reference was filed,. it was Supreme Court considered view that the IEBC’s Secretary and Chief Executive Officer, irrespective of whether or not lEBC’s Commissioners are in office, was constitutionally clothed with the competence to seek an advisory opinion from this Court under Article 163(6) .To do so however, the Secretary ought to have approached Court with a clear and definite averment that he was seeking an advisory opinion in that capacity only or with the authority of the IEBC upon a resolution of that commission which resolution ought to be in writing and presented before the court. In the present Reference, there could not have been a resolution in the manner stated in the absence of Commissioners. From the pleadings before the court , Mr. Marjan was heading and body of the Reference indicated that the Reference was filed by IEBC qua IEBC and not by its Secretary in that capacity. At paragraph 1 he categorically stated that the applicant was that the IEBC and in his affidavit in support of the Reference he deponed that he was swearing the affidavit on behalf of IEBC, the applicant. The IEBC was a corporate body while the Secretariat was not and therefore, in the absence of the Commissioners, the Secretary had no independent power to bring proceedings in the nature of the Reference before the court on behalf of the Commission. The courts have been unanimous on this issue however, invoking public interest and the gravity of the matter, the Court exercised its discretion to address the questions.
On issue of delimitation of boundaries without Commissioners, the Secretariat under the leadership of the Commission Secretary and CEO, was 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 Commissioners did 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 personnel, procurement, and other functions necessary for institutional continuity. Such acts remain valid and binding, provided they fall within the bounds of statutory delegation and do not purport to usurp the constitutional functions of the Commission as a corporate body. A clear distinction however must be drawn between administrative continuity by the Secretariat and the exercise of constitutional authority vested in the Commission as a collegial entity. It was Courts view that the exercise of constitutional functions expressly reserved for the Commission, such as those enumerated under Article 88(4) of the Constitution, could not be lawfully discharged in the absence of a properly constituted Commission with the requisite quorum as contemplated under Article 250(1) and (2) of the Constitution.The Court therefore found that the function of delimitation of electoral boundaries, as provided for under Article 88(4)(c), was a substantive constitutional responsibility that requires the deliberation and approval of the Commissioners of IEBC acting as a collective body. Accordingly, the Court further determined that in the absence of Commissioners or the requisite quorum of Commissioners, IEBC was constitutionally incapacitated from undertaking or purporting to undertake the exercise of delimitation of electoral boundaries and other constitutionally mandated electoral processes
On lapse of timelines, the Court advice was that timelines under Article 89(2) and (3) were binding and could not be disregarded. The lapse created a constitutional difficulty, but the Court clarified that it lacked power to retrospectively extend or amend those timelines. The envisaged extension of timelines,the court held that only Parliament, through legislation or constitutional amendment, could establish mechanisms for extending timelines in exceptional circumstances such as vacancy of Commissioners.