MALINDI, Kenya — A fresh legal dispute has emerged over the date of Kenya’s next General Election after the High Court in Malindi ruled that the presidential poll ought to be held in August 2026, with a city lawyer now challenging the interpretation and arguing that the constitutional five-year cycle points to August 2027.
Justice Mugure Thande ruled that the correct interpretation of Article 136(2)(a) of the Constitution requires the next presidential election to be held on the second Tuesday of August in the fifth year following the previous General Election.
Based on that interpretation, the judge identified August 11, 2026 as the constitutionally prescribed date for the next presidential election.
The ruling directly challenges the electoral timetable adopted by the Independent Electoral and Boundaries Commission (IEBC), which has been preparing for the next General Election in August 2027.
Justice Thande held that conducting the presidential election on any other date would violate several provisions of the Constitution, including Articles 2, 3, 10, 136, 142, 249 and 259.
The judge further rejected the argument that the interpretation would deny President William Ruto a constitutionally guaranteed five-year term, holding that Article 142 does not expressly guarantee a President five years in office.
The ruling has wider implications beyond the next election.
Justice Thande’s interpretation effectively means that the 2022 General Election was held outside the constitutional five-year electoral cycle, as the fifth year following the previous election would have commenced before the 2022 poll.
The judge nevertheless stopped short of ordering an immediate election.
She said compelling the IEBC to organise a presidential election in August 2026 would be practically impossible given that the petition was filed late and the country, political parties and prospective candidates had already made extensive preparations for the 2027 General Election.
The court warned that such an order could cause serious instability.
The effect of the declaration was consequently suspended until after the next General Election, allowing the existing electoral preparations to continue.
Lawyer disputes court’s interpretation
Reacting to the judgment, city lawyer Peter Wanyama has challenged the court’s interpretation, arguing that a straightforward calculation of the five-year presidential cycle places the next election in August 2027.
Wanyama said the period should be counted from August 2022 through successive 12-month periods.
His calculation is:
August 2022–August 2023 — First year
August 2023–August 2024 — Second year
August 2024–August 2025 — Third year
August 2025–August 2026 — Fourth year
August 2026–August 2027 — Fifth year
He therefore argues that the second Tuesday of August 2027 falls within the fifth year of the current presidential cycle.
“Election of President should be held on the 2nd Tuesday of August of the 5th year which is August 2027,” Wanyama said.
He described the Malindi judgment as incorrect, arguing that constitutional interpretation should be based on logic and a clear calculation of the five-year period.
Certainly, the judgment is not correct. Mathematics is transcendental,” he said.
Willis Otieno’s long-running argument
The Malindi judgment has also revived a legal argument that lawyer Willis Otieno has advanced for more than a year.
Otieno has previously maintained that the Constitution requires Kenya’s next presidential election to be held in August 2026, rather than 2027.
His argument is based on the wording of Article 136(2)(a), particularly the requirement that the presidential election be held in the second Tuesday of August “in every fifth year.”
The Malindi court has now adopted an interpretation broadly consistent with that position.
Otieno has welcomed the judgment, saying it confirms a constitutional position he has defended for years.
IEBC’s renewed constitutional question
The competing interpretations place the IEBC’s electoral timetable under renewed scrutiny.
The electoral commission has been preparing for the 2027 General Election, with voter registration, procurement, electoral planning and other preparations already underway.
The Malindi judgment does not, however, require the commission to abandon those preparations immediately because the court suspended the effect of its declaration.
The decision instead leaves the constitutional question open to further legal scrutiny while the country proceeds with preparations for the election currently scheduled for 2027.
The dispute now centres on the interpretation of the phrase “in the fifth year” under Article 136(2)(a), with one interpretation placing the election in August 2026 and another counting the fifth year as the period running from August 2026 to August 2027.
Constitutional debate, political consequences
The controversy comes at a politically sensitive period as parties and political leaders intensify preparations for the next General Election.
While the court’s ruling has generated significant attention, it does not presently change the practical electoral calendar.
The 2027 election preparations remain in place, subject to any further orders that may arise from subsequent legal proceedings.
The competing legal positions nevertheless raise fundamental questions about how Kenya calculates its presidential electoral cycle and whether the constitutional provisions governing election dates have been interpreted consistently.
For now, the question remains at the centre of an unfolding constitutional debate:
Does Kenya’s fifth presidential election year run from August 2026 to August 2027, making the 2027 election constitutional, or did the fifth year begin in August 2026, making August 11, 2026 the constitutionally prescribed date?
The answer could ultimately require determination by a higher court if the Malindi decision is challenged.
