NAIROBI, Kenya Aug 7 – The High Court has declared that Kenya’s next presidential election ought to be held on Tuesday, August 11, 2026, ruling that the Constitution requires the poll to be conducted on the second Tuesday of August in the fifth year following the previous General Election, and not after the fifth year as currently planned by the Independent Electoral and Boundaries Commission (IEBC).
In a judgment delivered in Malindi on Friday, Lady Justice M. Thande held that the IEBC’s plan to hold the next General Election on August 10, 2027 is based on an incorrect interpretation of the Constitution. She declared that the date of the presidential election is predetermined by the Constitution and is not subject to the electoral commission’s discretion.
“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,” Justice Thande ruled. “Contrary to the assertion of the 2nd Respondent, the date of the next election is predetermined by the Constitution and is not at the discretion of the 2nd Respondent.”
The petition challenged the IEBC’s interpretation of Article 136(2)(a), arguing that the constitutional phrase “the second Tuesday in August, in every fifth year” means the election must be held within the fifth year after the previous General Election, rather than after completing five full years. In interpreting the provision, the court relied on Article 259(5)(c) of the Constitution, which governs the computation of time, and found that because the last General Election was held on August 9, 2022, the fifth year commenced on August 9, 2026, making August 11, 2026, the second Tuesday of that August and therefore the constitutionally prescribed election date.
“The calendar shows that the second Tuesday of August in the fifth year is 11th August 2026,” the judge stated.
Justice Thande traced the history behind Kenya’s fixed election date, saying the framers of the 2010 Constitution deliberately sought to remove the uncertainty that existed under the former constitutional order, where the President wielded the power to dissolve Parliament and effectively 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 observed. “The Constitution brought in the long-yearned-for certainty with regard to the date of the election of the President.”
She cited previous Court of Appeal decisions and the reports of the Constitution of Kenya Review Commission, which showed that Kenyans overwhelmingly demanded a fixed, predictable and transparent election date as part of the country’s constitutional reforms.
The court also rejected the argument that its interpretation would deny the President a constitutionally guaranteed five-year term in office. Justice Thande held that Article 142 of the Constitution does not guarantee the President five years but instead provides that the President serves from the date of being sworn in until the next elected President is sworn into office.
“The term of office of the President is not pegged on years,” she ruled. “There is no provision in the Constitution that guarantees to the President a five-year term.”
The judgment means President William Ruto’s tenure, which began on September 13, 2022, constitutionally ends when the next duly elected President is sworn into office, even if he has not served a full five years.
The court further took judicial notice of the IEBC’s Election Operations Plan 2025–2027, in which the commission stated that Kenya would hold its next General Election on August 10, 2027. Justice Thande found that the electoral body’s planning was founded on an erroneous interpretation of the Constitution.
“It is quite evident that the date set by the 2nd Respondent for the next general election is the second Tuesday in August after the fifth year and not in the fifth year as stipulated in the Constitution,” she said.
She consequently declared that holding the presidential election on any date other than August 11, 2026, would violate Articles 2, 3, 10, 136, 142, 249 and 259 of the Constitution and would therefore be unconstitutional.
“Having found that there is no provision in the Constitution that guarantees to the President a five-year term, the correct interpretation of Article 142(1) is that the current President’s term that began on 13th September 2022 shall end when the person next elected President is sworn in, notwithstanding that he will not have served for five years,” the judge ruled.
However, despite finding that the Constitution requires the election to be held in August 2026, the court declined to compel the IEBC to immediately conduct the poll, saying such an order would be impossible to implement because the petition had been filed late and the country, political parties and candidates had already prepared for an election in August 2027.
“To grant the order as sought will be to grant an order that is logistically impossible to implement,” Justice Thande said. “Such an order would no doubt plunge the country into chaos. It is therefore necessary to balance the enforcement of the rule of law with judicial restraint to avoid precipitating unmitigable national instability.”
The court instead issued a series of declaratory orders clarifying that the Constitution requires the presidential election to be held on the second Tuesday of August in the fifth year following the previous General Election, declared that the fifth year after the August 9, 2022 election commenced on August 9, 2026, and held that any election conducted on a different date would be unconstitutional.
However, it suspended the declaration of invalidity until after the next General Election to allow the IEBC to correct the constitutional defect while avoiding disruption to the country’s current electoral preparations.
