Court Rules Next Election Should Be Held in 2026, Not 2027

Kenya’s next presidential election should have been held on August 11, 2026, the High Court has ruled, declaring that the Independent Electoral and Boundaries Commission (IEBC) misinterpreted the Constitution when it scheduled the poll for August 2027.

In a Malindi judgment delivered on Friday, Lady Justice M. Thande determined that Article 136(2)(a) of the Constitution fixes the presidential election date as the second Tuesday of August in the fifth year following the previous General Election, not after the five-year period elapses.

“The correct interpretation of Article 136(2)(a) of the Constitution is that the second Tuesday in the fifth year with regard to the next presidential election must mean 11th August 2026,” the judge ruled.

The petition challenged the IEBC’s reading of the constitutional provision. The court relied on Article 259(5)(c), which governs time computation, and found that since the last election was held on August 9, 2022, the fifth year began on August 9, 2026. The second Tuesday of that August falls on August 11, making it the constitutionally prescribed date.

Justice Thande traced the history behind Kenya’s fixed election date, noting that the 2010 Constitution’s framers intentionally eliminated the uncertainty that existed under the old order, where the President could dissolve Parliament and determine when elections would be held. “Prior to the promulgation of the current Constitution, the date of the presidential election was used as a secret weapon by the incumbent President,” she noted. “The Constitution brought in the long-yearned-for certainty.”

The court rejected arguments that its interpretation would deny the President a five-year term, holding that Article 142 does not guarantee five years but instead provides that the President serves until the next elected President is sworn in.

However, the court declined to compel the IEBC to immediately conduct the poll in August 2026, citing logistical impossibility and the risk of plunging the country into chaos. The judge noted that political parties and candidates had already prepared for a 2027 election. “To grant the order as sought will be to grant an order that is logistically impossible to implement,” Justice Thande said.

The court issued declaratory orders clarifying the correct constitutional interpretation but suspended the declaration of invalidity until after the next General Election to allow the IEBC to address the defect without disrupting current electoral preparations.