KENYA’S Independent and Electoral Boundaries Commission has appealed the High Court decision that terminated the tender for the printing of the presidential ballot papers.
According to Kenya’s The Star newspaper, the electoral agency, in their appeal, says the decision by a three-judge bench of the High Court did not consider serious facts raised before it.
IEBC filed a memorandum before the Court of Appeal last Monday.
The commission wants the Appellate Court to hear the matter urgently and to set aside the judgment in its entirety.
The decision is internally inconsistent and contradictory. The judges erred in law and fact by ignoring the evidence and submissions of the parties. The judges substituted their own positions and thus arrived at a wrong decision,”
IEBC says in the application.
Last Friday, justices Joel Ngugi, George Odunga and John Mativo, held that the electoral agency failed to ensure there was public participation in the tendering process.
The trio quashed the contract the awarded to Al Ghurair firm in June by IEBC through single sourcing.
NASA objected the decision and sought the court’s redress for the tender to be quashed.
However, the judges did not quash the entire tender but only directed the agency to re-advertise the award for the printing of presidential election materials.
The company, in this regard, was allowed to continue to print ballot papers for the Senator, Governor, Mp Women representative and MCA seats.
The judges also rejected a claim by NASA that President Uhuru Kenyatta had an advantage through the tender.
This was for allegedly having met directors of the printing firm before the contract was awarded to it.
The judges said NASA should have tabled substantive evidence rather than newspaper cuttings.
In their appeal, IEBC says the judges made a mistake in finding that public participation is a mandatory precondition to direct procurement.
The Commission argued that the court imposed on NASA a constitutional threshold of public participation which does not even exist.
“They deliberately ignored the guidelines in the judgment of the Court of Appeal and instead crafted a different interpretation on the issue of proportionality.”
The Commission further argues that the three judges also failed to appreciate the orders sought by the coalition were not capable of being granted.
Their basis was that the orders had the effect of splitting the tender in contravention of the Public Procurement and Asset Disposal Act.