Attorney-General (AG) Dorcas Oduor wants the Supreme Court to reject a petition filed by three Kenyans seeking to shorten President William Ruto’s term of office by conducting presidential elections in August 2026 instead of 2027.
The AG has filed a preliminary objection to the case describing it as “bad in law and an abuse of the court process”, and that the Supreme Court judges should not allow the petition to proceed to the hearing stage. She wants the apex judges to stay away from the dispute, citing lack of jurisdiction.
The objection came days after former Prime Minister Raila Odinga, who is an interested party in the case, filed papers in court opposing the petition and asking the judges to strike it out.
Dr Owiso Owiso (lawyer), Khelef Khalifa (activist), and Ashioya Biko (lawyer) filed the case last month, asking for a constitutional interpretation and a declaration that the next General Election must be held in August 2026, not 2027.
They want the court to determine the exact date of the next presidential election. This is because according to their computation, August 2026 is the fifth year after the 2022 elections - not in 2027, as currently scheduled by the Independent Electoral and Boundaries Commission (IEBC).
They believe holding the next election on any date other than the second Tuesday of August 2026, which they argue is the fifth year following August 9, 2022, would amount to an unconstitutional extension of President Ruto’s term.
However, the Attorney-General says the petition presents no tangible or concrete dispute that merits the exercise of the Supreme Court's adjudicative authority.
Through Chief State Counsel Emanuel Bitta, the AG says the petitioners do not even have the locus standi to file the petition since it is in the form of an advisory opinion.
“The petition seeks declaratory orders whose import is the pre-emptive usurpation of the legal mandate of the Independent Electoral and Boundaries Commission. The petition is an abuse of the court process as the petitioners are essentially seeking the Supreme Court's advisory opinion without the requisite locus standi,” argues Mr Bitta in the objection.
He states that the Supreme Court’s exclusive authority to hear and determine questions on the validity of the Presidential election, as provided in Article 163 of the Constitution, is constrained to the election of a President-elect.
“The Supreme Court's original jurisdiction under Article 163(3)(a) of the Constitution is to be read in the context of Article 140 of the Constitution, which contemplates a petition being filed after the declaration of a President-elect, therefore the present petition does not lie and is bad in law,” says Mr Bitta.
The AG is also dissatisfied with the decision of the petitioners to list 10 organisations and individuals, including former Prime Minister Raila Odinga and politician Jimi Wanjigi, as interested parties to the parties.
Other interested parties include the Law Society of Kenya, Wiper Party leader Kalonzo Musyoka, former Interior Cabinet Secretary Fred Matiang’i, President Ruto’s United Democratic Alliance (UDA), former Chief Justice David Maraga and Busia Senator Okiya Omtatah.
“The joinder of all the interested parties by the petitioners without any reference to the court contrary to settled and binding determination by the Supreme Court militates against the constitutional standing provided under Article 258(2)(c) of the constitution,” argues Mr Bitta.
However, according to the petitioners, the Supreme Court is the right forum to adjudicate their case because it previously “interpreted its jurisdiction under article 163(3)(a) of the Constitution of Kenya, 2010 as encompassing all issues and disputes relating to the presidential election including pre-election disputes”.
“The dispute before this court is a pre-election dispute relating to the date of holding of presidential elections in Kenya. The petitioners bring this petition as a matter of public interest and to defend the sovereignty of the people of Kenya and as part of their obligation to uphold and defend the Constitution,” reads the court papers.
They said they moved to court on their behalf, on behalf of the general public, and in pursuit of the rule of law.
They add that the petition intends to affirm the general principles of the electoral system enshrined in the Constitution and to defend, among others, the right to free, fair, and regular elections and the right to vote. It was also filed to ensure the integrity and accountability of presidential elections, they say.
Among the interested parties who have submitted their papers to the court on the case include Mr Odinga and Mr Wanjigi, opposing and supporting the petition, respectively.
For Mr Wanjigi, he wants the apex court to sustain the petition and issue a ruling urgently, citing “prevailing confusion and widespread anxiety”.
In a replying affidavit filed supporting the petition, Mr Wanjigi argues that the issues raised by the petitioners are fundamental to Kenya’s constitutional democracy and require urgent and definitive resolution.
He contends that the apex court must pronounce itself quickly, given the widespread anxiety and confusion.
“The prevailing confusion, widespread anxiety, and profound uncertainty surrounding the precise date of the next presidential election pose a grave and imminent threat to the constitutional order and could plunge the nation into avoidable political turmoil and instability,” Mr Wanjigi argues through his lawyer Willis Otieno.
He further submits that the ambiguity creates room for speculation and could erode public confidence in the electoral process, thereby undermining national cohesion and economic stability.
For Odinga, he wants the court to strike out a petition because the applicants have not demonstrated any exceptional circumstances to warrant the invocation of this court’s jurisdiction.
“The instant application is an abuse of the court process, and the applicants have not demonstrated any exceptional circumstances to warrant the invocation of this court’s jurisdiction,” he says in his grounds of opposition.
He further contends that the petition is premature since the General Election affects not only the presidency but also other elective positions, including Members of Parliament, Senators, Women Representatives, Governors, and Members of County Assemblies.
Through lawyer Paul Mwangi, Mr Odinga argues that the question of the election date has already been conclusively settled in previous litigation before the High Court and Court of Appeal.
