The High Court in Malindi has ruled that Kenya’s next presidential election should have been held in August 2026 rather than 2027 but suspended the effect of its decision to avoid disrupting the country’s constitutional order.
In a judgment delivered on August 7, 2026, Justice M. Thande ruled that the next presidential election should have been held on the second Tuesday of August 2026, saying the Constitution requires elections to be held in the fifth year after the previous General Election, not after it.
Justice Thande also declared that Kenya’s 2022 General Election was conducted contrary to the Constitution, ruling that it should have been held in 2021, but also suspended the effect of its decision.
The court held that under the Constitution, a presidential election must be held on the second Tuesday of August in the fifth year following the previous general election, and not after the fifth year.
“A Declaration is hereby made that the fifth year after the previous presidential election held on 9th August 2022 commences on 9th August 2026; A Declaration is hereby made that holding the next presidential election on any date other than the second Tuesday in August 2026 will violate and contravene Articles 2, 3, 10, 136(1) & (2)(a), 142(1), 249, 259(1) & (5)(c) of the Constitution, and will consequently be null and void,” read part of the judgement.
High Court Declares 2027 Election Timeline Unconstitutional, Suspends Judgment
Justice Thande further declared that the Constitution does not confer the President a fixed five-year term, stating that neither nor any other constitutional provision guarantees a five-year tenure in office.
The judge also held that, by operation of Article 136(2)(a), the President’s term of office is not five years.
Despite the findings, the court suspended the declaration of invalidity of the election until after the next General Election to allow the Independent Electoral and Boundaries Commission (IEBC) to rectify the constitutional defect.
“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.
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Petitioners’ Arguements
The petition was filed by Dr. Owiso Owiso, Khelef Khalifa and Ashioya Biko, who argued that Article 136(2)(a) of the Constitution requires presidential elections to be held on the second Tuesday of August in the fifth year following the previous General Election, and not after the fifth year.
According to the petitioners, the last presidential election was held on August 9, 2022, meaning the fifth year commenced on August 9, 2026.
They argued that scheduling the next presidential election for 2027 would violate the Constitution and deny eligible Kenyans their constitutional right to contest for the presidency at the prescribed time.
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The petitioners further contended that the Constitution does not expressly provide for a full five-year presidential term and that the computation of election dates should begin from the date of the previous presidential election.
In its determination, the court agreed with the petitioners’ interpretation, declaring that holding the next presidential election on any date other than the second Tuesday of August 2026 would contravene the Constitution and would be null and void.
However, to avoid disrupting the country’s constitutional order, the court suspended the declaration of invalidity until after the next General Election.
The court also dismissed all other prayers in the petition and directed that each party bear its own costs.
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