The Supreme Court has declined to give its advisory opinion to the electoral commission on the question of extending the already-lapsed boundaries review timelines, citing ongoing legal interventions pending before the Senate.
This came even as the court’s full bench, led by Chief Justice Martha Koome, called on political leaders to channel their influence towards addressing the IEBC’s structural weaknesses and enhancing its accountability.
According to the judges, a review of the history of Kenya’s electoral process reveals a consistent theme of deep-seated trust deficits between voters, the electoral process, and the Independent Electoral and Boundaries Commission (IEBC).
This, they said, was affirmed by the findings of the Kriegler Commission after the 2007–2008 post-election crisis and subsequent election-related litigation, culminating in the 2022 Presidential Petition.
“This deficit did not occur by accident; rather, it is the product of decades of politicisation of the electoral process, relentless attacks on the Commission’s independence, and a failure to implement electoral reforms in good time and in good faith,” the judges said.
The Supreme Court in Nairobi.
Photo credit: File | Nation Media Group
They stressed that political leaders have a constitutional duty to exercise delegated authority on behalf of the people responsibly.
“Rather than fuelling this mistrust for short-term political gain, undermining the very institutions they are duty-bound to protect, they should channel their power and influence towards addressing structural weaknesses, enhancing accountability, and reinforcing public confidence in the impartiality and competence of the IEBC,” the bench stated unanimously.
“Ultimately, the legitimacy of Kenya’s democratic order depends not only on credible institutions, but equally on the fidelity of political actors to the spirit of the Constitution and the sovereignty of the people,” the judges added.
They recalled that in their 2022 Presidential Election verdict, the court had stated that urgent legal, policy, and institutional reforms were required to address glaring shortcomings within the IEBC’s corporate governance structure.
The judges made their remarks Friday while ruling on an application filed by the IEBC seeking an advisory opinion on three questions.
The first was whether IEBC could undertake the delimitation of electoral boundaries and other electoral processes in the absence of commissioners or the requisite quorum.
The Independent Electoral and Boundaries Commission Chairperson Erastus Edung Ethekon.
Photo credit: Bonface Bogita | Nation Media Group
The second was whether IEBC could review constituency and ward boundaries when the timelines envisaged under Articles 89(2) and 89(3) of the Constitution, as read with Section 26 of the County Governments Act, had already lapsed.
The third was whether such constitutional timelines could be extended, and if so, by whom and under what circumstances.
At the time of filing the application on July 4, 2024, the IEBC Secretariat, led by CEO Mr Marjan Hussein, was operating without a chairperson or commissioners for over two years following their resignation shortly after the 2022 General Election.
New commissioners were only appointed and sworn into office a year later, in July 2025.
The court ruled that in the absence of commissioners or quorum, the Secretariat could not perform the Commission’s constitutional functions, including boundaries delimitation, conducting elections (including by-elections), or referenda.
“A clear distinction must be drawn between administrative continuity by the Secretariat and the exercise of constitutional authority vested in the Commission as a collegial entity,” said Chief Justice Koome, Deputy Chief Justice Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko.
“It is our considered view that the exercise of constitutional functions expressly reserved for the Commission, such as those enumerated under Article 88(4) of the Constitution, cannot be lawfully discharged in the absence of a properly constituted Commission with the requisite quorum as contemplated under Article 250(1) and (2),” they ruled, striking out the application.
On whether electoral boundaries review timelines could be extended, the court noted that a constitutional amendment Bill, 2024, had already been passed by the National Assembly and was pending before the Senate. They further held that only a fully constituted Commission could competently seek the court’s intervention on such matters.
“We are similarly constrained to find that, prior to the Commission first considering and applying its mind to the matter, particularly in light of the ongoing legislative intervention pending before the Senate, this court lacks any basis upon which to assess or evaluate the propriety or validity of any decision, or failure to decide, on its part.
As we have repeatedly stated, this Court does not engage in hypothetical determinations,” the judges said.
Article 89(2) mandates IEBC to review constituency boundaries at intervals of not less than eight years and not more than 12 years, with such reviews to be completed at least 12 months before a General Election. Article 89(3) similarly requires periodic reviews of ward boundaries. Section 26(3) of the County Governments Act further prescribes the same timeframes for ward reviews.
The last delimitation order was issued in 2012, meaning IEBC should have conducted the subsequent review between 6 March 2020 (eight years after) and March 6, 2024 (12 years after).
Analysts have previously warned that failure to complete the review risks exacerbating electoral disputes in 2027 if left unresolved.
