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Employment and Labour Relations Court has ruled that Independent Electoral and Boundaries (IEBC) Chief Executive Officer (CEO) Marjan Hussein Marjan unlawfully interdicted his deputy Ruth Kulundu soon after the General Election in 2022.

In a judgement delivered by Justice Linnet Ndolo on Thursday, November 30, 2023, the judge said that Marjan breached IEBC’s Human Resource manual and acted as the judge, the jury and the executioner when he interdicted Kulundu.

“By proceeding to interdict the petitioner, without recourse to the Commission or a duly constituted disciplinary committee, Marjan was clearly in violation of the IEBC Human Resource and Administration Policies and Procedures Manual, 2020,” Justice Ndolo ruled.

“Further, by taking over the disciplinary process, while being the complainant against the petitioner, Marjan placed himself in the position of prosecutor and executioner,” the judge added.

According to the judge, Kulundu’s charges were breach of confidentiality, insubordination and intimidation of staff.

“It is safe to conclude that the surviving charges against the petitioner are alleged disregard of the authority of the Commission Secretary, insubordination, and threats and intimidation of Commission staff,” the judge held.

While quashing the interdiction letter dated September 19, 2022, Justice Ndolo declared that the action of Marjan to interdict Kalundu was in excess of his powers and in violation of the law and the regulations of the Commission.

She further barred Marjan or any other person from the commission from further initiating and/or continuing any disciplinary process against Kalundu on account of any of the issues forming the subject matter of the petition

“The Respondents are hereby restrained from interfering with the petitioner’s employment on account of any of the issues forming the subject matter of this petition,” Justice Ndolo ordered.

In the interdiction letter issued to Kulundu, the issue of confidentiality was abandoned when she was accused of attending a meeting constituted by former commissioners Juliana Cherera who was also IEBC vice chairperson, Francis Wanderi and Justus Nyangaya and Irene Massit.

Justice Ndolo observed that although Marjan was central to the case, he never swore an affidavit to prove or rebut the allegations by Kulundu. At the same time, his then chair Wafula Chebukati did not file any reply to indicate whether the commission sat and agreed to interdict Kulundu.

According to Justice Ndolo, Cherera swore an affidavit explaining what happened. The former Chebukati’s deputy explained to the court that when the presidential election petition was filed, the dissenting commissioners wrote to Chebukati asking that they meet in order to have the pool of lawyers allocated to them to reply to the case.

However, she said, Marjan and Chebukati did not respond or attend the meeting. Cherera stated that she was the one who directed Kulundu to attend the meeting and take notes.

Following the revelation by Cherera, the judge observed that Kulundu was a victim of the split in the commission pitting factions between Chebukati and Cherera.

“From the evidence on record, no disciplinary committee was constituted to deal with the petitioner’s case and the matter appears not to have been discussed by the Commission. This was confirmed by Cherera in her replying affidavit and there was no evidence to the contrary,” Justice Ndolo ruled.

“Having established the major split among the Commissioners and the events leading to the Petitioner’s interdiction, I have no hesitation in reaching the conclusion that the action taken by Marjan against Kalundu amounted to taking sides in a commission-wide grievance,” the judge added.

Kulundu was suspended from office by IEBC CEO Marjan on allegations of gross misconduct, insubordination and participation in illegal activities, contrary to her employment terms of service.

Marjan, in the interdiction letter, accused Kulundu of impersonation and arranging an illegal commission plenary meeting, during which four commissioners who disputed the 2022 presidential election results picked law firms that would represent the commission in the presidential election petition filed by Azimio la Umoja – One Kenya Coalition Presidential candidate Raila Odinga.

It is during that meeting, where four IEBC commissioners; Vice Chair Juliana Cherera, Francis Wanderi, Irene Masit and Justus Nyang’aya, who differed with Chairman Wafula Chebukati settled on lawyers Paul Muite and Issa Mansur to represent the commission in a presidential election petition filed by Odinga and his running mate Martha Karua.

Marjan claimed Kulundu impersonated him and usurped his responsibilities by performing duties bestowed on the CEO’s office.

She is also accused of issuing commission staff with threats and intimidation, contrary to IEBC regulations and rules of conduct. One of the complainants is Acting Director of Voter Registration and Electoral Operations Moses Sunkuli.

In the show cause letter dated August 29, 2022, Kulundu had been given 14 days to respond to the allegations that Marjan termed gross misconduct and a serious violation of her employment contract, whose consequences included dismissal from service if found culpable.

Aggrieved by Marjan’s decision Kulundu petitioned the court arguing that she was issued the suspension letter signed by three out of seven commissioners. According to her, the decision ought to have been unanimously made by all the commissioners.

Her lawyer Hosea Manwa asserted that the commission’s decisions cannot be ratified by the minority.