The High Court has declared that Kenya’s presidential election is constitutionally due in August 2026, but suspended the effect of the declaration until after the next General Election.
Malindi High Court Judge M Thande ruled that the fifth year following the August 9, 2022 presidential election commenced on August 9, 2026.
Under Article 136(2)(a) of the Constitution, the President’s election is supposed to be held on the second Tuesday of August in the fifth year following the previous election.
This means the constitutional date for the 2026 presidential election is Tuesday, August 11, 2026.
However, the judge declined to order the Independent Electoral and Boundaries Commission (IEBC) to organise the election this year.
Justice Thande said such an order would be difficult to implement since preparations for the next General Election were already underway.
“To grant the order as sought will be to grant an order that is logistically impossible to implement,” the judge ruled.
The judge further warned that forcing an election at this stage could cause instability in the country.
“It is therefore necessary to balance the enforcement of the rule of law with judicial restraint to avoid precipitating unmitigable national instability,” she said.
The case was filed by Dr Owiso Owiso, Khelef Khalifa and Ashoya Biko against the Attorney General and the IEBC.
The petitioners had asked the court to declare that the next presidential election should be held on the second Tuesday of August 2026.
They also wanted the court to direct the IEBC to prepare for the election.
While the court agreed with the petitioners on the constitutional interpretation of the election date, it stopped short of ordering the IEBC to conduct the poll.
Justice Thande declared that holding the next presidential election on any other date apart from the second Tuesday of August 2026 would violate several provisions of the Constitution.
However, the court suspended the declaration until after the next General Election.
The judge also ruled that Article 142 of the Constitution does not give the President a five year term in office.
“Neither Article 142 nor any other provision of the Constitution confers upon the President a five-year term in office,” the judgment stated.
The court dismissed the other prayers by the petitioners and made no order on costs.
The ruling comes as Kenya heads towards the 2027 General Election, with political parties and politicians already positioning themselves for the contest.
For now, the judgment does not require Kenyans to return to the ballot in 2026, but it places a fresh spotlight on the constitutional provisions governing the timing of presidential elections.