The Court of Appeal yesterday handed the IEBC victory and dealt the opposition a double blow after it reversed an earlier order that had stopped the printing of presidential ballot papers.
In a landmark ruling, the Appellate Court also rejected NASA’s claims that President Uhuru Kenyatta had influenced the contract to Al Ghurair Printing and Publishing Company.
The five-judge bench comprising Erastus Githinji, Alnashir Visram, Roselyn Nambuye, Jamila Mohammed and Otieno Odek ruled that public participation is not a mandatory requirement in direct procurement.
The bench unanimously faulted High Court judges Joel Ngugi, George Odunga and John Mativo, saying they committed a serious error when they failed to consider millions of voters, whose rights to a free, fair and regular election would have been violated, should the August 8 polls fail to go on.
“In granting the orders, the judges erred in imposing a requirement for public participation as mandatory before resorting to direct procurement,” the judges ruled.
They also rejected claims of biasness on the part of the IEBC.
The judges said there was no evidence to prove the IEBC’s choice of direct procurement was meant to avoid competition.
“They exercised their discretion wrongly, when they failed to consider the timelines set for the procurement processes and election dates,” they said.
Although the High Court had stopped the printing of presidential ballot papers, following a suit filed by NASA, it allowed Al Ghurair to print those of governor, senator, woman representative, MP and MCA.
On this, the five judges said the ballot papers tender is “single, inseparable and indivisible and cannot be split”.
They said it was wrong for the court to suggest there was enough time to order fresh recruitment.
The judges dismissed claims the President has links with Al Ghurair and had a hand in the controversial contract as rumours.
They held that newspaper cuttings are insufficient proof that Uhuru met Al Ghurair officials at State House as the alliance had claimed a few days before the contract between the IEBC and Al Ghurair was signed.
They ruled that the opposition failed to prove Uhuru influenced the award of the tender.
“Even if admissible without proof, the court cannot treat it as sufficient evidence,” they said.