The decision by four Independent Electoral and Boundaries Commission (IEBC) commissioners to distance themselves from the results of the August 9 presidential election elicited debate on the quorum of the Commission during the announcement made by Wafula Chebukati.
It has also been projected that the issue of quorum could be one of the contentious issues should the Azimio la Umoja One Kenya file a petition challenging the declaration of Deputy President William Ruto as president-elect at the Supreme Court.
A number of people have raised issues on whether the IEBC chairperson was in order to declare the president-elect despite only two commissioners supporting him in the process.
Nonetheless, other factions argue that Chebukati exercised his duties as per the Constitution given it is his mandate to declare the president-elect as the National Returning Officer (NRO).
Notably, the issue of IEBC quorum was one of the contentious issues that were addressed by the court during the three Building Bridges Initiative (BBI) petitions.
At the time, IEBC had only three commissioners - those who were present during Chebukati's declaration of the president-elect - and had undertaken the verification of signatures collected by the BBI proponents.
In a consolidated BBI petition filed by economist David Ndii and others before Justices Joel Ngugi, George Odunga, Ngaah Jairus, Enock Mwita, and Mumbua Matheka, the High Court determined that IEBC did not have enough quorum at the time to carry out the verification of signatures.
Additionally, in a consecutive petition filed before the Court of Appeal by BBI proponents, the appellate court on August 20, 2021, upheld the decision of the High Court.
The matter was determined by Justices Daniel Musinga, Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.
"The Administrative Procedures for the verification of signatures in support of the Constitution Amendment Referendum made by the Independent Electoral and Boundaries Commission (IEBC) are illegal, null and void because they were made without a quorum and in violation of Sections 5, 6 and 11 of the Statutory Instruments Act, 2013," the Judges ruled.
However, when the BBI proponents moved to the Supreme Court in March 2022, the seven-Judge bench of Chief Justice Martha Karambu Koome, Deputy CJ Philomena Mwilu, Njoki Ndungu, Smokin Wanjala, Isaac Lenaola, Mohammed Ibrahim and William Ouko, determined that the electoral body was in order to verify the results.
They determined that the three commissioners constituted a quorum for the electoral body to undertake the fundamental process in a referendum.
"The IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4)," the Supreme Court ruled.