The Labour court has ordered the Independent Electoral and Boundaries Commission (IEBC) to start afresh the process of recruiting a new chief executive, who also doubles up as the agency's secretary.
Justice Byram Ongaya said the recruitment process that started in May last year was not transparent and was marred by conflict of interest.
He ordered that the new exercise be done in strict compliance with the law. The recruitment seeks to fill the position that was left vacant by Mr Ezra Chiloba, who was fired on September 24, 2018.
Justice Ongaya found that in the process of recruiting a new CEO, the institution had violated section 10(1) and 27 of the IEBC Act and the national values and principles of governance in Article 10 of the constitution.
The violated provisions provided for recruitment of the commission secretary through an open, transparent and competitive process that leads to appointment of a qualified person.
However, the court noted that the agency was first doing the recruitment through an independent consultant and thereafter decided to do it themselves.
"The court finds that the shifting of the decisions as was done and without notifying the public cast a shadow of doubt on the integrity of the process," said justice Ongaya while ruling in favour of a petition filed by a lawyers' lobby group known as Chama Cha Mawakili (CCM).
The group sued IEBC for committing various irregularities, including failure to publish the names of all applicants and shortlisted candidates.
Mr Georgiadis Majimbo, a director of the group, told the court that the applications for the position had been received and processed by the acting CEO Mr Marjan Hussein, "who is overtly interested in the vacancy". In that regard, the lawyer said there was conflict of interest.
Justice Ongaya ruled there was no transparency in the recruitment process. For instance, he said it is only by the court documents that IEBC disclosed that an independent consultant who been engaged to undertake the recruitment had declined to sign the contract.
IEBC also disclosed in court that the quitting of the consultant, Apex Consulting Africa Limited (ACAL), forced the commission to do the process itself.
The court heard that the consultant was to be paid Sh1.5 million. But the firm declined the job on the grounds that it had not been involved in the advertisement of the vacancy and receiving of the applications.
The commission had also limited ACAL's accountability over the recruitment process.
IEBC chairman Mr Wafula Chebukati and the commission's manager for legal services Mahamud Jabane told the court that the resolution to have IEBC do the recruitment by itself was made during a meeting held on June 7, 2019.