NAIROBI, Kenya- Former Law Society of Kenya (LSK) President Faith Odhiambo has urged Kenyans to exercise restraint in interpreting the Malindi High Court judgment on the timing of Kenya’s next General Election, warning against portraying the ruling as having created an immediate constitutional crisis.
Odhiambo said the judgment should be read in full, particularly the orders issued by the court and the remedies it deliberately declined to grant.
In a statement responding to the judgment, Odhiambo said the court interpreted Article 136(2)(a) of the Constitution to mean that the presidential election must be held on the second Tuesday of August “in every fifth year,” rather than after the fifth year.
According to the court’s computation under Article 259(5)(c), the relevant date would have been August 11, 2026.
However, Odhiambo noted that the court did not order the Independent Electoral and Boundaries Commission (IEBC) to organise an election immediately.
“The Court did not order IEBC to conduct an election next week,” she said, noting that the court declined to issue a mandatory order after finding that an immediate election would be logistically impossible and could trigger national instability.
She further highlighted the court’s decision to suspend its declaration of invalidity until after the next General Election, giving IEBC an opportunity to correct what the court identified as a constitutional defect.
Odhiambo argued that the suspended declaration should not be interpreted as creating a vacuum in the presidency or automatically terminating the current administration.
“A suspended remedy is not an invitation to manufacture a vacuum in government,” she said.
She also rejected interpretations suggesting that the judgment had removed President William Ruto from office, converted his administration into a caretaker government or restricted the exercise of presidential powers.
“No part of the judgment removes the President from office, converts the presidency into a caretaker arrangement, or restricts any enumerated presidential power,” Odhiambo said.
She pointed to Article 142 of the Constitution, which provides for continuity in the presidency until the next President is sworn into office.
Odhiambo also stressed the distinction between declaratory and mandatory orders, saying a court declaration clarifies the law but does not automatically compel a specific action in the absence of a corresponding mandatory order.
“A declaration is not a mandatory order in disguise,” she said.
The former LSK president said the judgment nonetheless raises significant constitutional questions, including the relationship between fixed election dates, the computation of constitutional timelines and the terms of Parliament and county governments.
She argued that the issues should be resolved through the appellate process rather than political speculation or unilateral action.
“The rule of law requires fidelity to both the Court’s reasoning and its actual orders,” Odhiambo said.
She cautioned against two opposing interpretations of the judgment — treating it as irrelevant on one hand or claiming that it has already displaced Kenya’s constitutional government on the other.
“Elections cannot be left to political convenience neither can constitutional remedies be administered in a manner that creates avoidable disorder,” she said.
Odhiambo called for an urgent but measured institutional response to the judgment, noting that it remains a High Court interpretation unless it is varied, stayed or overturned through the appropriate legal process.
