The High Court in Nairobi has dismissed a petition seeking to postpone the 2027 General Election until the Constitution undergoes a comprehensive review, including reconsideration of term limits for leaders and the creation of an Office of the Leader of the Opposition with executive oversight powers.
Justice Patricia Nyaundi ruled that constitutional amendments must follow the procedures set out in the Constitution, rather than be pursued through court litigation. She found that the court lacked jurisdiction because the petitioner had bypassed the legal mechanisms for constitutional amendment, and upheld a preliminary objection raised by the Independent Electoral and Boundaries Commission (IEBC).
The case was filed by Bernard Mwanzia against the IEBC, the Attorney-General, the Speaker of the National Assembly and the Speaker of the Senate.
He sought a delay of the upcoming General Election on grounds that the 2010 Constitution, while progressive, contains structural flaws that undermine national unity, economic stability and orderly governance — making constitutional review necessary before the 2027 poll.
He cited concerns over the sequencing of elections, term limits "which encourage corruption," the use of vernacular in county assemblies, overrepresentation by elected leaders, cultural erosion, and the constitutional right to picket and demonstrate, as issues requiring reform. He applied for an order stopping preparations for the next polls until those issues were addressed.
Mr Mwanzia contended that the country should undertake an inclusive constitutional review before holding another General Election. He also sought declarations that the current constitutional framework governing elections, devolution and representation is defective and requires urgent amendment.
Had the petition succeeded, it would have suspended ongoing preparations for the next General Election and effectively made the country's electoral calendar conditional on the completion of an unspecified constitutional review process — with significant constitutional, political and administrative implications for the IEBC, Parliament and the Executive.
Constitutional changes through litigation
However, the court found it improper for the petitioner to seek sweeping constitutional changes through litigation, rather than through the amendment mechanisms established by the Constitution.
"The jurisdiction of this court has not been properly invoked. The Constitution prescribes a clear, exclusive, and self-executing pathway for its amendment, and that pathway must be respected," said Justice Nyaundi.
Among the proposed reforms, Mr Mwanzia wanted the court to direct the respondents to initiate a constitutional review reconsidering presidential term limits, rationalising the devolution system, and reforming representation of the people in Parliament and county assemblies. He also wanted the creation of a constitutional Office of the Leader of the Opposition with executive oversight powers, the centralisation of tax collection under the Ministry of Local Government or another suitable body, and the entrenchment of Kenyan cultural values in law.
He argued that proceeding with the election under the current framework would deepen political and economic instability.
The IEBC opposed the petition, arguing that the Constitution already provides a mandatory framework for amendment through parliamentary or popular initiative under Articles 255, 256 and 257. It said the petition raised no constitutional violation by the electoral commission and instead attempted to bypass established procedures.
Justice Nyaundi agreed, finding that the case offended both the doctrine of exhaustion and the doctrine of constitutional avoidance. She said the petitioner had approached the court prematurely, and "in a manner that runs afoul of the doctrine of exhaustion, which requires litigants to first pursue and conclude the processes specifically designated by the Constitution or statute before seeking judicial intervention."
The judge said the petitioner had not demonstrated that the constitutional review procedures had been pursued before turning to court.
In addition, the court found that the dispute was barred by the doctrine of constitutional avoidance, under which courts decline to determine constitutional questions where another constitutionally prescribed mechanism exists to resolve them.
"A court must decline to pronounce on constitutional questions where a matter can be resolved through alternative, constitutionally-mandated mechanisms. In these circumstances, the court is devoid of jurisdiction and must down its tools," Justice Nyaundi ruled, before dismissing the petition.
The court made no determination on the merits of Mr Mwanzia's proposals, or on whether the Constitution requires the changes he advocated for. It also declined to award costs against the petitioner, noting that the case was public interest litigation.
