The Employment and Labour Relations Court on Monday temporarily barred the electoral commission from disqualifying public servants seeking elective seats who will not have resigned from their positions by February 7.
In a ruling issued on Monday, Kericho Labour Judge Njagi Marete suspended the implementation of a letter dated December 1, 2016 from Chief of Staff and Head of Public Service Joseph Kinyua directing public servants interested in running for elective office to resign on or before February 7 until a petition challenging the order is heard and determined.
The Independent Electoral and Boundaries Commission (IEBC), Public Service Commission, the Attorney-General and Mr Kinyua were named as respondents in the petition filed by Eric Cheruiyot.
Mr Cheruiyot, a resident of Kipkelion in Kericho County, was also directed by Justice Marete to ensure that the respondents are served with the order.
A hearing was set for February 6 at 9am.
The petitioner moved to court accusing the four government institutions of contravening the Constitution.
Mr Cheruiyot argued in his petition that the quoted laws had illegally granted governors, senators, MPs and MCAs “undue advantage” by allowing them to stay in office while requiring other public servants to resign from office.
The petitioner wants the court to order that public servants can only leave office to participate in the elections after the dissolution of Parliament and county assemblies.
“Section 43(5) and 6 of the Elections Act deprives public officers a source of income for a whole six months while MPs, Governors and MCAs continue being in employment, thereby making the political process and competition unfair,” said the petitioner.
He further argued that by interfering with public officers’ contracts of employment, the law also abrogated their rights to fair labour practices.
He argued that the IEBC had failed to declare the actual date when the elections will be held, but in a replying affidavit, IEBC Senior Legal Officer Ruth Makuthu said the Constitution was clear that the election must be held on August 8 this year.