Kenya’s High Court has ruled that the country’s next presidential election should be held in August 2026 rather than in August 2027, but suspended the effect of its decision to allow time for appeals and avoid disrupting preparations for the scheduled poll.
Justice Mugure Thande ruled that the fifth year following the presidential election held on 9 August 2022, began on 9 August 2026. She said the Constitution therefore requires the next presidential election to be held on the second Tuesday of August in that fifth year.
“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 11 August 2026,” Thande said in her judgment.
The ruling has created uncertainty over the timing of the next election, which Kenya’s electoral commission has been preparing to hold on 10 August 2027.
Thande suspended the declaration, however, citing the practical difficulties of moving the election forward by almost a year and allowing the parties to pursue appeals.
The case was brought by Dr Owiso Owiso, Ashioya Biko and Khelef Khalifa, who challenged the interpretation of constitutional provisions governing the timing of presidential elections and the length of the president’s term.
The petitioners argued that Article 136(2)(a) requires a presidential election to be held on the second Tuesday of August in the fifth year following the previous General Election.
Using the method of calculating time provided under Article 259(5)(c) of the Constitution, they argued that the fifth year following the 9 August 2022 election began on 9 August 2026. That would make 11 August 2026, the second Tuesday of August and, in their view, the constitutionally required election date.
They also argued that the Independent Electoral and Boundaries Commission (IEBC) had previously applied a similar interpretation when scheduling the 2013 and 2017 elections.
The petitioners said the Constitution did not guarantee the president a fixed five-year term and that the election date should be determined by constitutional provisions rather than by calculating the length of the president’s tenure.
The IEBC opposed the petition, arguing that such an interpretation would create inconsistencies between provisions governing national and county elections and effectively shorten the terms of elected officials.
The commission cited Article 177(4), which provides for a five-year term for Members of County Assemblies, and argued that bringing the General Election forward to 2026 would conflict with other constitutional provisions.
It also argued that the Constitution envisages presidential, parliamentary and county elections being held together as part of a common electoral cycle.
Thande rejected the argument that the constitutional provisions should be interpreted in a way that would preserve the existing electoral timetable.
She said provisions governing the elections of the president, members of parliament, governors and Members of County Assemblies should be read together because they form part of the same electoral cycle.
The judge said the election date prescribed by Article 136(2)(a) was fixed by the Constitution and was not subject to the discretion of the IEBC.
She therefore declared that holding the next presidential election on a date other than 11 August 2026 would contravene the Constitution.
The ruling also addressed the length of the president’s term, with Thande finding that the Constitution does not expressly guarantee a five-year presidential tenure.
She said neither Article 142 nor any other constitutional provision expressly establishes five years as the fixed length of a presidential term.
Despite finding that 11 August 2026 was the constitutionally prescribed date, the judge declined to order the IEBC to organise the election immediately.
She said doing so would be impractical because the electoral commission, prospective candidates and the public had been preparing for an election in August 2027.
“To grant the order as sought will be to grant an order that is logistically impossible to implement,” Thande said.
The suspension means the ruling does not immediately require the IEBC to abandon its preparations for the 2027 election.
The parties can challenge the judgment through the appeals process, leaving the final timing of the election subject to further court proceedings.
The case is likely to attract wider political and constitutional debate because the date of Kenya’s next General Election has significant implications for the tenure of elected officials, electoral preparations and the political calendar ahead of the vote.
For now, the IEBC’s published timetable remains centred on August 2027, while the High Court’s interpretation established 11 August 2026 as the date it considers constitutionally prescribed, subject to the outcome of any appeal and the effect of the suspension order.
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