The Lower Eastern Times Opening The Third Eye
The High Court has ruled that Kenya’s next presidential election should have taken place on Tuesday, August 11, 2026, holding that the Constitution mandates the poll be conducted on the second Tuesday of August in the fifth year following the previous General Election — not after the fifth year has fully elapsed, as currently planned by the Independent Electoral and Boundaries Commission (IEBC).
Delivering the judgment in Malindi on Friday, Lady Justice M. Thande found that the IEBC’s plan to hold the next General Election on August 10, 2027 stems from a flawed reading of the Constitution. She ruled that the presidential election date is fixed by the Constitution itself and is not left to the electoral commission’s discretion, stating that the correct interpretation of Article 136(2)(a) points to August 11, 2026 as the second Tuesday in the fifth year.
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The petition had challenged the IEBC’s reading of Article 136(2)(a), arguing that the constitutional phrase “the second Tuesday in August, in every fifth year” means the election must fall within the fifth year after the previous General Election, rather than only after five complete years have passed. In reaching her decision, Justice Thande relied on Article 259(5)(c) of the Constitution, which governs how time is calculated under the law, and concluded that since the last General Election was held on August 9, 2022, the fifth year began on August 9, 2026 — making August 11, 2026 the second Tuesday of that month and, by extension, the constitutionally mandated election date.
Justice Thande traced the origins of Kenya’s fixed election date, explaining that framers of the 2010 Constitution deliberately sought to eliminate the uncertainty that existed under the previous constitutional order, when the President held the power to dissolve Parliament and effectively dictate the timing of elections. She observed that before the current Constitution was promulgated, the presidential election date had often been used as a political tool by sitting presidents, and that the Constitution was designed to introduce long-awaited certainty around the timing of presidential elections.
She referenced past Court of Appeal rulings and reports from the Constitution of Kenya Review Commission, which she said demonstrated that Kenyans had overwhelmingly called for a fixed, predictable, and transparent election date as part of the country’s constitutional reforms.
The court also dismissed arguments that this interpretation would deny the President a constitutionally guaranteed five-year term. Justice Thande ruled that Article 142 of the Constitution does not promise the President five years in office, but instead provides that the President serves from the date of being sworn in until the next elected President is sworn into office, meaning the presidential term is not tied to a fixed number of years.
Under this ruling, President William Ruto’s tenure — which began on September 13, 2022 — would constitutionally come to an end when the next duly elected President is sworn in, regardless of whether he has completed a full five years in office.
The court further took note of the IEBC’s Election Operations Plan 2025–2027, in which the commission indicated that Kenya’s next General Election would be held on August 10, 2027, finding that this timeline was based on a misreading of the Constitution. Justice Thande noted that the date set by the IEBC corresponded to the second Tuesday in August after the fifth year, rather than within the fifth year as the Constitution requires.
She consequently declared that conducting the presidential election on any date other than August 11, 2026 would violate Articles 2, 3, 10, 136, 142, 249, and 259 of the Constitution, rendering such a date unconstitutional.
Despite this finding, the court stopped short of ordering the IEBC to immediately hold the election, noting that such an order would be logistically unworkable given that the petition had been filed late and the country, political parties, and candidates had already been preparing for an election in August 2027. Justice Thande warned that granting the order as sought risked plunging the country into chaos, stressing the need to balance the enforcement of the rule of law with judicial restraint to avoid triggering irreversible national instability.
Instead, the court issued a series of declaratory orders clarifying that the Constitution requires the presidential election to be held on the second Tuesday of August in the fifth year following the previous General Election, confirming that the fifth year after the August 9, 2022 election began on August 9, 2026, and holding that any election held on a different date would be unconstitutional. However, the court suspended the declaration of invalidity until after the next General Election, giving the IEBC room to correct the constitutional defect without disrupting the country’s ongoing electoral preparations.
