The High Court in Malindi has ruled that Kenya’s next presidential election should legally have been held on August 11, 2026, not in 2027 as the Independent Electoral and Boundaries Commission (IEBC) has planned, though it suspended the practical effect of the decision to avoid disrupting the country’s electoral timeline.
In a judgement delivered on Friday, Justice Mugure Thande found that Article 136(2)(a) of the Constitution requires the presidential election to be held on the second Tuesday of August within the fifth year following the previous General Election, not after that fifth year has elapsed.
Relying on Article 259(5)(5)(c), which governs how time periods are calculated under the Constitution, the court held 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 correct constitutional date for the next presidential poll.
“The correct interpretation of Article 136(2)(a) of the Constitution is that the second Tuesday in the fifth year with regard to the next presidential election must mean 11th August 2026,” Justice Thande ruled.
The judge said the IEBC’s own Election Operations Plan 2025-2027, which fixes the next General Election for August 10, 2027, rests on a mistaken reading of the Constitution.
“It is quite evident that the date set by the second respondent for the next General Election is the second Tuesday in August after the fifth year and not in the fifth year as stipulated in the Constitution,” she said, adding that the timing of presidential elections is fixed by the Constitution itself and is not a matter left to the commission’s discretion.
The court further held that the Constitution does not guarantee the President a fixed five-year term in office, and that neither Article 142 nor any other provision does so either.
Applying the same reasoning retrospectively, Justice Thande found that the 2022 General Election itself had been held on the wrong date and should instead have taken place in 2021.
Despite these findings, the court stopped short of ordering an immediate change to the electoral calendar. It suspended the declaration of invalidity affecting the next election, allowing the IEBC time to correct the underlying constitutional defect rather than disrupting the vote already planned for 2027.
“The declaration of invalidity of the election is suspended until after the next general election is held to allow the second respondent to correct the defect,” the court ruled. Justice Thande dismissed the remaining prayers sought in the petition and directed that each party bear its own costs.
The case was brought by Dr Owiso Owiso, Khelef Khalifa and Ashioya Biko, who had asked the court to declare that holding the next presidential election on any date other than August 11, 2026, would breach the Constitution.
Their argument echoes a position long advanced by lawyer Willis Otieno, who has maintained since at least January this year that Kenya’s next General Election is constitutionally due in August 2026, not 2027, based on the same reading of Article 136(2)(a).
The IEBC had not commented on the ruling by the time of publication.
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