NAIROBI, Kenya- Health Cabinet Secretary Aden Duale has criticised the Malindi High Court judgment on the timing of Kenya’s next General Election, arguing that the court misinterpreted the Constitution by distinguishing between the phrases “fifth year” and “five years.”
Duale, a former National Assembly Majority Leader and long-serving legislator, said the interpretation adopted by Lady Justice Thande would effectively shorten the constitutional term of elected leaders to four years and two days.
The High Court ruled that Article 136(2)(a) provides for the presidential election to be held on the second Tuesday of August “in every fifth year.” Based on its computation of the constitutional calendar, the court identified August 11, 2026, as the relevant election date.
Duale, however, disputed that interpretation, arguing that the Constitution must be read as a whole and in the context of the five-year terms provided for elected offices.
He pointed to Article 136(2)(a), which provides that the presidential election shall be held on the same day as the General Election of Members of Parliament, being the second Tuesday in August in every fifth year.
According to Duale, the provision should be read alongside Article 177(4), which expressly provides that a county assembly shall be elected for a term of five years.
He argued that the same constitutional election cycle applies to the various elective positions, including the presidency, Parliament, governors and county assemblies.
Duale challenged the court’s calculation that the fifth year began on August 9, 2026, arguing that such an interpretation would result in elected leaders serving only four years and two days from the August 9, 2022 General Election.
“To interpret that the date is next week would mean all elective positions would be vacated after exactly just 4 years 2 days which is an absurdity,” Duale argued.
He maintained that the constitutional framework points to a five-year electoral cycle, with the next General Election falling in August 2027.
Duale also criticised the court’s reliance on Article 142 in determining the presidential term.
The provision states that the President holds office from the time of taking the oath of office until the next President is elected and sworn in. The court relied on the provision in rejecting the argument that Article 142 independently guarantees a fixed five-year presidential term.
Duale described that interpretation as a “misapplication of clear self-speaking provisions of the Constitution.”
He argued that Article 142 cannot be interpreted in isolation from the other constitutional provisions governing elections and the terms of elected institutions.
The Cabinet Secretary further warned that interpreting August 11, 2026, as the election date could create vacancies in elective offices before the expiry of their constitutionally contemplated terms.
He said such an outcome would amount to removing elected leaders from office through a mechanism not provided for by the Constitution.
Duale also argued that constitutional interpretation should take into account the broader historical context of Kenya’s constitutional development.
He said the interpretation of the 2010 Constitution should not be undertaken in isolation from the constitutional framework that existed before its adoption and the history of the constitutional reform process.
“The people of Kenya never submitted to be electing their elective leaders after every 4 years and 2 days,” Duale said.
He further argued that Kenya’s electoral history and previous election cycles demonstrate that the country’s constitutional framework has consistently contemplated five-year terms.
“The judgment therefore falls flat on the face of the Constitution from all angles,” he said.
Duale’s intervention adds to a growing legal and political debate following the Malindi High Court decision, with questions emerging over the meaning of constitutional time, the duration of elected terms and the practical implications of the court’s interpretation of Article 136(2)(a).
The judgment remains subject to the appellate process, with the co mpeting interpretations likely to form part of further legal proceedings over the timing of Kenya’s next General Election.
