The electoral commission's fresh tendering for the printing ballot papers will go on, the Court of Appeal has ruled.
While declining to suspend the fresh tendering, Appellate judges Alnashir Visram, Wanjiru Karanja and Jamilla Mohammed on Friday said doing so would only interfere with the electoral agency’s preparation for the August 8 General Election.
Last month, High Court judge George Odunga quashed the disputed tender award to a Dubai based-firm Al Ghurair by the Independent Electoral and Boundaries Commission (IEBC).
On February 13, the judge ordered the IEBC to restart the tendering for the supply of ballot papers, result declaration forms and poll registers in compliance with the new election laws as well as the Public Procurement & Assets Disposal Act.
Since Al Ghurair had lost the tender following the High Court verdict, it moved to the appellate court seeking the suspension of the fresh tendering pending the hearing of its appeal.
But the three-judge bench declined to grant the reprieve, terming the firm's case as one that lacks merit considering that the set polls date is fast approaching, before dismissing the suit.
“In our view, there is a likelihood that the orders sought would interfere with IEBC’s preparations for the said elections," they said.
"It is therefore in the public interest for the polls to take place during the scheduled date, consequently the balance of convenience tilts in favour of us declining to grant the order sought."
The judges also upheld the opposition’s arguments that the fresh tendering should kick-off as ordered.
The Coalition for Reforms and Democracy are the ones who had challenged the tender award to Al Ghurair before transforming into the National Super Alliance (Nasa).
According to the firm, it argued that it stands to suffer a huge financial loss and faulted Justice Odunga for failing to provide reasons while quashing the disputed award.
But Nasa, through its Executive Director Norman Magaya, argued that the firm can seek remedy by way of damages if there was a breach of contract with IEBC.
IEBC agreed with those sentiments, saying that indeed the company would still get a remedy whether the appeal goes on or not.
The Public Procurement Administrative Review Board, which was listed as an interested party in the case, told the appellate court that since the tender was a binding contract between the firm and the IEBC, it ought to be upheld.
However, the judges could not agree to this, saying that the firm still has the liberty to participate in the fresh tendering process.