The Malindi High Court has declared that holding the next presidential election in August 2027 would be unconstitutional, in a landmark ruling that could have far-reaching implications for Kenya's electoral calendar.
According to a judgment reviewed by Vantage Ke, the court found that the Independent Electoral and Boundaries Commission (IEBC) would violate the Constitution if it conducts the presidential election on August 10, 2027.
“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), 24, 25(1) & (5) of the Constitution, and will consequently be null and void," Justice Mugure Thande ruled on Friday, August 7, 2026.
The court held that presidential elections must be conducted in the fifth year, rather than after the expiry of the fifth year, effectively meaning the next election should have been held in August 2026.
Justice Thande further found that the Constitution does not guarantee a President a full five-year term, ruling that the constitutionally prescribed election date takes precedence over the duration of a presidential term.
“The Court thus finds 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 11th August 2026," Justice Mugure said.
The petitioners argued that since the last presidential election took place on August 9, 2022, the Constitution required the next poll to be held on the second Tuesday of August 2026, which falls within the fifth year after that election.
After examining Articles 136, 142 and 259 of the Constitution, Justice Thande agreed with the petitioners' interpretation, holding that the Constitution fixes the date of the presidential election in the fifth year and does not require an incumbent President to complete a full five-year term before fresh elections are held.
The court therefore declared that conducting the next presidential election on any date other than the second Tuesday of August 2026 would be unconstitutional and "null and void."
However, despite finding that an August 2027 presidential election would contravene the Constitution, the judge suspended the effect of the declaration until after the next General Election.
The suspension means the IEBC will still proceed with the 2027 General Election despite the court's interpretation that the Constitution required the presidential election to be held in August 2026.
“The Declaration of invalidity in respect of holding the next presidential election on any date other than the second Tuesday of August 2026 is hereby suspended until after the next general election," the court ruled.
Justice Thande noted that stopping or delaying the scheduled 2027 General Election at this point would almost certainly throw the country into chaos.
She said the court was required to strike a balance between upholding the Constitution and exercising judicial restraint to prevent triggering national instability that could not easily be reversed.
Justice Mugure added that the decision was meant to provide clarity on the law and eliminate uncertainty surrounding the timing of future presidential elections.
