When Commissioners Are Absent: What Public Commissions Can Learn From the IEBC Election Case

For nearly two years after the 2022 General Election, Kenya’s Independent Electoral and Boundaries Commission (IEBC) had no sitting Commissioners. New Commissioners were only sworn in on 11th July 2025. Yet during that gap, on 5th March 2024, the IEBC went ahead and supervised elections for the Law Society of Kenya (LSK) Council, LSK’s male representative to the Judicial Service Commission, and LSK’s representatives to the Advocates Disciplinary Tribunal.

A petitioner challenged all of it. His argument was straightforward: a commission with no Commissioners cannot lawfully exercise its constitutional mandate, and in any case, no Act of Parliament expressly authorised the IEBC to run LSK’s internal elections in the first place. He asked the High Court to nullify the elections, invalidate every decision the elected officials had made, and order them to refund any pay they had received.

It’s the kind of question that should worry any statutory body, commission, or regulator that operates through both a governing board and a permanent secretariat: what happens to your day-to-day operations when the board seat is empty?

The Court’s answer, in short: the secretariat can carry on.

In its judgment delivered on 23rd July 2026, the High Court (Milimani, HCCHRPET/E667/2025) dismissed the petition in full. On the authorisation question, the Court held that Article 88(4) of the Constitution (read together with the Law Society of Kenya Act, the Advocates Act, and LSK’s own regulations) gave the IEBC a proper legal basis to run these elections, since LSK is itself a body created by an Act of Parliament and its regulations specifically contemplated the IEBC as an available electoral body.

On the more consequential question (whether an empty Commission bench renders everything the institution does void) the Court drew a firm line between governance and administration. Commissioners set policy, strategy, and provide oversight. The Secretariat, led by the Secretary/CEO, carries out the routine administrative and operational work, including running third-party elections of this kind. The absence of Commissioners doesn’t freeze the Secretariat’s lawful, day-to-day mandate. If it did, the Court noted, virtually every administrative act any commission undertakes during a leadership vacancy (voter registration, procurement, contracts, personnel decisions) would collapse into legal limbo. That’s not an outcome the Constitution intends, and the Court read Article 259’s instruction to interpret constitutional provisions purposively and in a manner that promotes good governance and institutional continuity accordingly.

Why this matters beyond IEBC

Kenya has dozens of constitutional and statutory commissions, authorities, and regulators structured the same way (a governing board or commission, and a secretariat that keeps the lights on. Board vacancies happen: terms lapse, appointments are delayed, disputes hold up recruitment. This judgment gives useful, tested reasoning for any such body facing the question of whether its operational continuity survives a governance gap) and it reinforces that the answer depends on a clear, defensible line between what is policy and oversight (reserved for the board) and what is lawful administrative execution (properly delegated to the secretariat).

CB Mwongela & Co. Advocates acted for the IEBC in this matter and secured the dismissal of the petition in its entirety. If your organisation is a commission, regulator, or statutory body navigating a governance transition, board vacancy, or a challenge to decisions made by your secretariat, our public and constitutional law team can help you assess your exposure and structure your operations to withstand exactly this kind of challenge