The Malindi high court has ruled that the next presidential election must be held next week Tuesday and not 2027 as scheduled.
Justice Mugure Thande held that the fifth year after the August 9, 2022 presidential election commenced on August 9, 2026, meaning the next presidential election ought to have been held on the second Tuesday of August 2026.
In the case, by Dr. Owiso Owiso Khelef and Ashioya Bibova had sued Attorney General and the Independent Electoral and Boundaries Commission (IEBC) challenging next year’s elections.
The court declared that conducting the presidential election on any date other than the second Tuesday of August 2026 would violate several constitutional provisions, including Articles 2, 3, 10, 136, 142, 249 and 259 of the Constitution, and would consequently be null and void.
However, despite agreeing with the petitioners’ interpretation of the Constitution, Justice Thande declined to compel the IEBC to conduct the election in August 2026, noting that the petition had been filed too late and that such an order would be logistically impossible to implement because the country, political parties, candidates and electoral preparations were already geared towards an August 2027 election.
The judge warned that issuing such an order would plunge the country into chaos and stressed the need to balance constitutional enforcement with national stability.
To avoid constitutional and institutional disruption, the court suspended the declaration of invalidity until after the next general election, giving the IEBC an opportunity to correct the constitutional defect.
The court further declared that the Constitution does not guarantee the President a fixed five-year term in office, holding that neither Article 142 nor any other constitutional provision confers an absolute five-year presidential tenure.
The court further declared that the Constitution does not guarantee the President a fixed five-year term in office, holding that neither Article 142 nor any other constitutional provision confers an absolute five-year presidential tenure.
In its final orders, the court declared that presidential elections must be held on the second Tuesday of August in the fifth year following the previous general election and that the fifth year after the August 9, 2022 election commenced on August 9, 2026.
It further declared that holding the election on any other date would be unconstitutional and void but suspended the effect of that declaration until after the next general election to avoid disrupting the country’s constitutional order.
The court also reiterated that the President’s tenure is not a fixed five-year term under the Constitution.
