The process that led to the appointment of constituency returning officers and their deputies is illegal, High Court has ruled.
Judge George Odunga on Wednesday found that the Independent Electoral and Boundaries Commission did not follow the law while appointing the poll officials.
The judge, however, declined to quash the gazette notice that published their appointment.
The case was filed by Mr Khelef Khalifa, the director at Muslim for Huma Rights, who is also part of the team seeking to stop the Thursday repeat presidential election at the Supreme Court.
"The IEBC did not provide the list of persons proposed for appointment to political parties and independent candidates at least 14 days prior to the proposed date of appointment to enable them make any representations," Justice Odunga said.
He added: "In so doing, the IEBC violated Regulation 3(2) of the Elections Regulations as read with Articles 38 and 81of the Constitution."
The judge pointed out that there was no need to cancel or postpone tomorrow's poll because he was not requested to issue any orders regarding that.
He said the petitioners may be at liberty to file a subsequent suit using the grounds that IEBC failed to comply with the law and seek nullification of the poll.
According to the duo, they had made enquiries from three political parties seeking to know whether they had received lists of proposed persons appointed as returning officers.
They sued IEBC for flouting the law and wanted a gazette notice of September 12 to be quashed.
But IEBC told court that returning officers and their deputies are permanent employees of the commission.
IEBC said the said officers were first gazetted in May and that second gazettement was necessitated by the fact that some of them had been transferred.