Court order paves way for new Kisii deputy governor after Monda's ouster

Elijah Julius Obebo

Kisii County Deputy Governor nominee Elijah Julius Obebo during an interview with the Nation at his Public Service Board offices on June 14, 2024.

Photo credit: File | Nation Media Group

In a breakthrough for the Kisii County Government and Governor Simba Arati, a court has ordered the Independent Electoral and Boundaries Commission (IEBC) to gazette a returning officer, which would allow the swearing-in of deputy governor nominee Elijah Obebo.

Governor Arati had nominated Obebo, who is currently the chairman of the Kisii County Public Service Board, as his deputy following the impeachment of his previous deputy, Dr Robert Monda.

In a ruling dated July 4, 2024, Justice Teresa Odera found that the IEBC had failed to gazette Obebo's name as the deputy governor, even though gazetting is not a "legal prerequisite but an administrative formality".

Ousted Kisii Deputy Governor Robert Monda during a function at Gusii Stadium on January 23, 2022.

Photo credit: Ondari Ogega I Nation Media Group

The judge ordered IEBC chief executive officer Marjan Hussein Marjan to ensure that the returning officer for Kisii County is gazetted within seven days, paving the way for the clearance and gazetting of the deputy governor nominee.

Obebo has already been vetted and approved by the Kisii County Assembly.

“In the event of the failure by the IEBC to comply with the orders of gazettement, Elijah Obebo shall immediately be sworn into office as the deputy governor for Kisii County,” the order continued.

The role of the returning officer in the process is to receive the nomination papers, verify that the nominee meets the required threshold, issue a certificate of nomination and then gazette the name of the nominee.

In a letter to the Orange Democratic Movement (ODM) national chairperson in April, Marjan had regretted that he could not gazette a returning office for Kisii County, saying it was the job of the chairperson of the commission, who had since retired.

“It is noteworthy that in terms of the Constitutional prescription and the IEBC Act, it is the commission chairperson who executes gazette notices on behalf of the commission. However, noting the absence of the chairperson of the commission, we wish to inform (you) that the commission is not in a position to appoint through gazettement, the County Returning Officer and subsequently to gazette the DG approved by the county assembly,” Marjan said in the letter dated April 2, 2024.

“We advise that you invoke judicial intervention and obtain a court order requiring or directing the commission secretary to undertake the appointment and gazettement as required. Kindly be advised that the commission can only act pursuant to a court order.”

Simba Arati

Kisii Governor Simba Arati.

Photo credit: File | Nation Media Group

But in an affidavit responding to the petition filed by the Kisii County Government, IEBC Director of Legal Services Chrispine Owiye argued that the petition was “an abuse of the court process, scandalous, frivolous, fundamentally incurable and fatally bad in law, misconceived, defective, vexatious and intended to embarrass the court and the legal process and should be dismissed with cost to the respondent”.

He added that the facts or grounds on which the petition is anchored are “a spurious assembly of crafted falsehoods that the petitioner has choreographed to suit his narratives”.

In the petition, the Kisii County Government had sought a declaration that the gazetting of a duly elected and/or nominated governor or deputy governor is an administrative action to be taken by the Commission CEO and is not dependent on the composition or quorum of the IEBC.

The devolved unit also sought a declaration that the IEBC's failure and inaction to gazette a returning officer and to gazette Obebo as the nominated deputy governor was contrary to the Constitution and Sections 4 and 5 of the Fair Administrative Act.