Though the 2010 Constitution was deliberately designed to make election dates fixed and predictable, the date has generated at least five major rounds of litigation before the courts with 13 judges involved.
The litigation, spanning 2015 to 2026, has produced competing interpretations of how the constitutional election clock should be counted with different courts and judges being asked to explain what “the second Tuesday in August in every fifth year” actually means.
The 2010 Constitution deliberately anchored elections to the second Tuesday of August in every fifth year to make polling predictable.
Yet that formula has repeatedly returned to court, most recently before Malindi High Court Judge Mugure Thande, whose judgment that the election should have been held in August 2026 and not 2027 has reopened a debate earlier courts had considered settled.
According to constitutional lawyer Waikwa Wanyoike, the recurring litigation and confusion is premises on "an assumption that the Constitution guarantees every elected office-holder five years" and "entitlement of the political class".
The first legal battle involved three consolidated High Court petitions in Nairobi. Andrew Kiplimo Sang Muge, County Assembly Forum and Richard Ouma Oginda challenged the 2017 elections timetable, arguing that members of county assembly (MCAs) were entitled to five-year terms.
The late President Mwai Kibaki during the promulgation of the Constitution on August 27, 2010.
Photo credit: File | Nation Media Group
They argued that holding the MCA elections on August 8, 2017 would terminate the first MCAs' five-year constitutional term about eight months early.
Filed between 2015 and 2016, the petitions were decided by Justice Edward Muriithi on April 2017. The High Court found found that there was a conflict between Article 177(1)(a), which required MCA elections on the second Tuesday of August in every fifth year, and Article 177(4), which expressly gave county assemblies a five-year term.
It found that the MCA term would be shortened by the August 8, 2017 election date and ordered MCAs compensation, while allowing the election to proceed.
The Attorney General and Independent Electoral and Boundaries Commission (IEBC) appealed. In November 2017, a three-judge Court of Appeal bench comprising Philip Waki (retired), Roselyn Nambuye (retired) and William Ouko (now Supreme Court judge) overturned Justice Muriithi's decision and dismissed the consolidated petitions.
The appellate court held that constitutional provisions had to be read together and the fixed election date could not be displaced.
That decision supplied the formula later relied upon by other courts, counting the cycle from one second Tuesday of August to the next.
Activist Okiya Omtatah (now Busia senator) and Nyakina Wycliffe Gisebe revived the question in 2018, arguing that the next election should have been held on August 17, 2021 rather than August 2022 because, in their reading of the Constitution, 2021 constituted the fifth year after the previous election.
Busia Senator Okiya Omtatah.
Photo credit: File | Nation Media Group
Justice Weldon Korir dismissed their petition on November 26, 2020, holding that the Constitution required elected officials (President, Governors, Senators MPs, and MCAs) to serve a five-year term and vote on the same day.
He adopted the Court of Appeal’s calculation and held that the next election was due in August 2022.
Mr Omtatah now says he respects that ruling, despite his earlier position. He says public-interest litigation means “pushing the boundaries of legal interpretation” while accepting judicial decisions when precedent prevails.
The third battle came from former nominated Senator Paul Njoroge, who challenged IEBC’s August 9, 2022 presidential election date. He argued that then President Uhuru Kenyatta’s term ran until November 28, 2022 after the 2017 repeat presidential election.
Justice Anthony Mrima rejected the challenge in 2022, holding that intervening events could not shift the constitutional election cycle.
The fourth stage moved the dispute to the Supreme Court in 2025. Lawyer Dr Owiso Owiso together with activists Khelef Khalifa and Ashioya Biko asked the court to declare that Article 136(2)(a) required the next presidential election during the current fifth year.
A seven-judge bench comprising Chief Justice Martha Koome, Philomena Mwilu, the late Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko heard the application.
The Supreme Court did not decide the merits. On August 15, 2025, it struck out the application because its jurisdiction could not be invoked to determine the pre-election dispute as presented.
The same petitioners then moved to the High Court in Malindi. Their petition, filed on October 15, 2025, put Article 136(2)(a) before Justice Thande. The said article states that a presidential election must happen on the same day as the general election for Members of Parliament. This date is the second Tuesday in August, in every fifth year.
Justice Thande found next General Election after the 2022 polls was constitutionally due on Tuesday, August 11, 2026, rather than in August 2027.
The Supreme Court in Nairobi.
Photo credit: File | Nation Media Group
Constitutional lawyer Waikwa Wanyoike says the assumption of a guaranteed five-year presidential or parliamentary term is a “constitutional fallacy”.
Mr Wanyoike argues that Article 177(4) expressly gives MCAs five years, while the Constitution makes no equivalent express guarantee for the President, MPs or senators.
He argues that the dispute is not simply about counting years. It is about what the Constitution actually guarantees: a five-year tenure or an election in the fifth year. He supports Justice Thande’s interpretation of “fifth year”.
Dudley Ochiel, another Constitutional lawyer, disagrees. He says the Malindi court “overly grammartises” the phrase “in the fifth year” while overlooking constitutional history and the five-year electoral cycle reflected in the constitution-making process.
"The constitutional history does not support an intention to create four-year terms for elected offices. The Constitution of Kenya Review Commission (CKRC) final report, the Bomas process and the broader constitution-making record repeatedly reflect an intention to establish five-year terms and a five-year electoral cycle. The phrase ‘in the fifth year’ cannot be read in isolation from that history," said Mr Ochiel.
Lawyer Ndung’u Wangenye adds an institutional dimension. He says citizens have a duty to defend the Constitution and that the Supreme Court must ultimately give a binding interpretation through the proper route.
"The final solution that will rest the matter is the final verdict that will be given by Supreme Court because from the trend that matter is general public importance," says Mr Wangenye.
Cabinet Secretary Aden Duale argues that ending the fifth year in 2026 would effectively shorten elected terms to about four years and two days. He says Article 136(2)(a) must be read with provisions requiring the same election date for other offices.
"The Constitution cannot be interpreted to turn a five-year electoral cycle into a term of four years and two days, because that would shorten the tenure of elected leaders contrary to the Constitution’s broader framework," he says.
The Court of Appeal judgment, later quoted by Justice Mrima, noted that Kenyans had demanded a predictable election date after the previous system gave the executive considerable influence over election timing.
The current dispute is therefore not simply about arithmetic. It concerns whether “fifth year” describes when an election must occur or whether it guarantees a complete five-year tenure.
The constitutional provision intended to remove uncertainty over election timing remains firmly at the centre of same uncertainty.
Other jurisdictions in Africa that have had their elections date challenged include the Democratic Republic of Congo, Senegal and Libya.
In the DRC case, the main question has been on the constitutionality of specific runoff dates, such as the landmark post-conflict transition dates, and delayed broad election calendars, while in Senegal, the issue in 2024 was on a presidential decree that sought to delay the national election date. The country’s constitutional court struck down the postponement, declaring the date extension unlawful and ordering the state to hold the presidential election as close to the original timeframe as possible.
In the Libya case, the question has often been on how the fragile political transition affects key poll timelines.
