If Your Board Has a Vacancy, Does Your Company Grind to a Halt? A High Court Ruling Says No, If You’ve Set It Up Right

Every company, at some point, operates with an incomplete board. A director resigns. A term expires before a replacement is appointed. An AGM is delayed. In that gap, a question that unsettles many management teams surfaces: can the business keep functioning (signing contracts, running operations, making routine decisions) while the board is short-handed?

A High Court judgment delivered in July 2026, though decided in the context of a public commission, turns on exactly this governance principle, and the reasoning applies squarely to private companies, NGOs, and any entity structured with a board and a separate management or executive team.

The case

The Independent Electoral and Boundaries Commission (IEBC) had no sitting Commissioners for nearly two years after the 2022 General Election. During that period, its secretariat (the permanent staff who run its day-to-day operations) conducted elections on behalf of the Law Society of Kenya. A petitioner argued that with no Commissioners in office, the IEBC as an institution was effectively non-functional, and everything its secretariat did during that period, including those elections, was void.

The Court’s reasoning, and why it matters to your boardroom

The High Court dismissed the challenge, and its reasoning rested on a distinction every company should recognise: the difference between governance and management. Commissioners, the Court held, are responsible for policy formulation, strategy, and oversight. The secretariat (the executive arm) performs the routine administrative and operational functions and implements the policies the governing body has already set. A vacancy at board level does not, by itself, invalidate the lawful actions of management carried out within its proper mandate. To hold otherwise, the Court observed, would paralyse routine institutional functioning every time a board seat sat empty , an outcome no sensible reading of governance law should produce.

That reasoning tracks standard corporate governance principle almost exactly: a well-run board delegates operational authority to management through clear terms of reference, and that delegation should survive short-term board vacancies, provided management stays within the scope of what’s been delegated.

Three questions this raises for your business

Is the line between board and management actually written down? If your board’s oversight functions and your management’s operational authority aren’t clearly documented  (in your articles, a board charter, or delegation resolutions) a vacancy dispute becomes far harder to defend.

Does your management team have authority that survives a board gap? Contracts, procurement decisions, and personnel actions taken by management during a temporary board vacancy should be defensible as validly delegated administrative acts, but only if the delegation was properly constituted in the first place.

Have you stress-tested what happens if someone challenges a decision made during a vacancy? As this case shows, the other side will often try to invalidate everything, not just the specific decision in dispute. A clear governance structure is your best defence against that kind of broad-brush attack.

CB Mwongela & Co. Advocates acted for the IEBC in this case, securing a full dismissal of the petition and a judicial endorsement of exactly this governance principle. We advise companies, boards, and NGOs on governance structures, delegation frameworks, and disputes arising from board composition and authority,  get in touch before a vacancy becomes a liability.