MALINDI, Kenya – The High Court has declared that holding the next presidential election in August 2027 would be unconstitutional, ruling that the polls must be held on the second Tuesday of August 2026, in a landmark judgment that could upend Kenya’s electoral calendar.
Justice Mugure Thande ruled on Friday, August 7, 2026, that the Independent Electoral and Boundaries Commission would be contravening the Constitution by conducting the presidential election on August 10, 2027, as currently scheduled.
“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,” Justice Thande ruled.
The court further declared that, by operation of Article 136(2)(a) of the Constitution, the term of office of the President is not five years, and that neither Article 142 nor any other constitutional provision confers upon the President a five-year term in office.
Interpretation of constitutional timelines
Justice Thande found that the correct interpretation of Article 136(2)(a) of the Constitution is that the second Tuesday in the fifth year before the next presidential election must mean August 11, 2026.
The petitioners had argued that because the last presidential election was held on August 9, 2022, the Constitution required the next elections to be held on the second Tuesday of August 2026, which falls within the fifth year after the previous polls.
The court examined Articles 136, 142, and 259 of the Constitution and agreed with the petitioners’ interpretation on the timelines of the next presidential election.
The court ruled that the Constitution fixes the date of presidential elections in the fifth year and does not require a President to complete a full five years in office before another election is held.
Orders of the Court
Justice Thande made several declarations, including:
- The election of the President must be held on the second Tuesday of August in the fifth year following the previous general election, and not after the fifth year
- The fifth year after the previous presidential election held on August 9, 2022, commences on August 9, 2026
- Holding the next presidential election on any date other than the second Tuesday in August 2026 will violate the Constitution and consequently be null and void
Suspension of declaration
However, Justice Thande suspended the declaration of invalidity of the election until after the next general election is held to allow the IEBC to correct the defect.
All other prayers in the petition not specifically granted were dismissed, and the court made no order as to costs.
