The High Court has declared that Kenya’s next presidential election was constitutionally due in August 2026, rather than 2027, but stopped short of ordering an immediate poll, warning that doing so could plunge the country into chaos.
Malindi High Court Judge Mugure Thande, in a judgement delivered on Friday, found that Article 136(2)(a) of the Constitution requires a presidential election to be held on the second Tuesday of August in the fifth year following the previous general election, and not after the fifth year.
"Holding the next presidential election on any date other than the second Tuesday in August 2026 will violate and contravene Articles 2, 3, 10, 136(1) and (2)(a), 142(1), 249 and 259(1) and (5)(c) of the Constitution, and will consequently be null and void," said the judge.
Justice Thande further found that the fifth year following the August 9, 2022 presidential election commenced on August 9, 2026.
However, the judge suspended the effect of the declaration of invalidity until after the next General Election, allowing the Independent Electoral and Boundaries Commission (IEBC) an opportunity to correct what the court identified as a constitutional defect.
Justice Mugure Thande.
Photo credit: File | Nation Media Group
The petitioners had sought both declaratory orders clarifying the date of the next presidential election and an order directing the IEBC, the second respondent, to hold the poll on the second Tuesday of August 2026.
Justice Thande declined to grant the latter order, saying the petition had been filed in October 2025, by which time preparations for the 2027 General Election were already underway.
She noted that the IEBC, prospective candidates and Kenyans generally were already geared towards an election in August 2027.
“Ordering the electoral commission to organise a presidential election in August 2026 would be to grant an order that is logistically impossible to implement,” the judge said.
Justice Thande said the court had to balance enforcement of the rule of law with judicial restraint to avoid precipitating “unmitigable national instability”.
The dispute centred on the interpretation of Article 136(2)(a), which sets out when a presidential election should be held.
Justice Thande found that the provision requires the election to take place on the second Tuesday of August in the fifth year following the previous general election. She also declared that, by operation of Article 136(2)(a), the President’s term of office is not five years.
The judge further found that neither Article 142 nor any other provision of the Constitution confers upon the President a five-year term in office.
Her interpretation is significant because the petitioners had argued that holding the next election in August 2027 would amount to extending President William Ruto’s tenure beyond the constitutionally prescribed period.
The petitioners, Dr Owiso Owiso, Khelef Khalifa and Ashioya Biko, had filed their case at the Supreme Court in April 2026, seeking an interpretation of the constitutional provisions governing the timing of the next General Election.
They argued that the fifth year following the August 9, 2022 election begins on August 9, 2026 and runs until August 8, 2027.
On that calculation, they said, the second Tuesday of August 2026, which falls on August 11, is the constitutionally prescribed election date.
The petitioners relied on Article 259(5)(c), which provides how periods expressed in years are to be computed, to support their interpretation.
They also cited the 2013 and 2017 election cycles as evidence that the Constitution does not guarantee a President a full five-year period in office where doing so would conflict with the constitutionally prescribed election date.
The petitioners pointed out that former President Uhuru Kenyatta was sworn in on April 9, 2013, but the next General Election was held on August 8, 2017, less than four and a half years later.
Similarly, the August 9, 2022 election was held before Mr Kenyatta had completed five years in office, after which he left office and President Ruto was sworn in.
Justice Thande’s judgment similarly found that the constitutional election timetable takes precedence over the notion that a President is entitled to serve a full five years.
The judge said where the IEBC fails to do what is required of it under the Constitution, the court must intervene.
The petitioners had sought declaratory orders to clarify the law and remove uncertainty over the date of the next presidential election. Justice Thande explained that such orders are intended to establish the legal position without necessarily compelling a party to immediately take a particular action.
The judge argued that the purpose of declaratory judgments is to remove uncertainty over legal rights and obligations.
The petitioners had also sought an order compelling the IEBC to organise and conduct the presidential election on August 11, 2026.
Justice Thande said the petition had been filed rather late in the day in October 2025, when the electoral commission, prospective candidates and the public were already preparing for the 2027 General Election.
The judge found that ordering the IEBC to abandon those preparations and organise a presidential election within the remaining period would be practically impossible.
The judge consequently suspended the declaration that an election held outside August 2026 would be invalid until after the next General Election.
This means that while the court has declared what it considers to be the correct constitutional election timeline, it has not ordered the country to hold a presidential election in August 2026.
Justice Thande also declared that the fifth year following the August 9, 2022 presidential election commenced on August 9, 2026 and that holding the next presidential election on any other date would contravene the Constitution and consequently be null and void, subject to the suspension she issued.
The court further declared that the President’s term of office is not five years under Article 136(2)(a), and that neither Article 142 nor any other constitutional provision gives the President a five-year term.
The petition, filed through Otieno Ogola & Company Advocates and Osundwa & Company Advocates, named the Attorney General and the IEBC as respondents.
The Law Society of Kenya, Katiba Institute, Wiper Party leader Kalonzo Musyoka, United Democratic Alliance (UDA), former Chief Justice David Maraga, activist Okiya Omtatah, politician Jimi Wanjigi, former Cabinet Secretary Fred Matiang’i and the Kenya Human Rights Commission have been listed as interested parties.
