https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10125

Mbugua v Chairperson of Independent Electoral and Boundaries Commission & 5 others (Petition E409 of 2024) [2026] KEHC 10125 (KLR) (Constitutional and Human Rights) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 10125 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E489 of 2024 RE Aburili, J July 3, 2026 Between Maxwel George Murungaro Mbugua Petitioner and Chairperson of Independent Electoral and Boundaries Commission 1st Respondent Independent Electoral And Boundaries Commission 2nd Respondent The Honourable Attorney General 3rd Respondent and Katiba Institute 1st Interested Party Kituo Cha Sheria 2nd Interested Party Human Rights Commission 3rd Interested Party Judgment 1.The Petitioner, Maxwel George Murungaro Mbugua, describes himself as a sovereign Kenyan citizen, deeply committed to the supremacy of the Constitution, the rule of law, democracy, and human rights. He recounts his personal history as a victim of post-election violence in both 2007/2008 and 2017, which left him displaced and fearful of renewed ethnic tensions in future electoral cycles. 2.Against this backdrop, he expresses concern that the conduct of politicians and the persistence of ethnic politics may once again destabilize the country during the general elections scheduled for 2027. 3.The Petition is framed as a matter of constitutional interpretation. The Petitioner contends that the offices of the President and Deputy President are not distinct but rather constitute one substantive office. He argues that once the holders of these offices have served two terms, they should be deemed to have undergone compulsory retirement and therefore be barred from seeking election or appointment to any other state office. In his view, the constitutional two-term limit amounts to mandatory retirement and any attempt by such officers to vie for elective positions or assume public office would contravene the Constitution. 4.The petition dated 19th June, 2024 therefore seeks the following reliefs:a.A declaration that a state officer is not an employee of a state organb.A declaration that office of the president and Office of the Deputy President are inseparable and are one substantive office serving strictly two termsc.A declaration that a retired state officer as defined in the Constitution of Kenya 2010 is not eligible to be elected or appointed to hold a state officed.An order of permanent injunction to prevent the 1st and 2nd Respondents jointly and or severally from nominating and or clearing a retired state officer to vie for any elective positione.Costs of the suit. 5.The petitioner relies on several provisions of the Constitution including Article 77 (3) on restrictions on a state officer holding two concurrent remunerative positions and argues that a retired state officer should therefore not be elected or appointed to another state office. He urges that therefore, once a state officer like the President or deputy president serves their two terms of office then they should be deemed to have retired since the Deputy president is the principal assistant to the President and should the president die, he assumes office. 6.The petitioner’s submissions are incomprehensible and incoherent as well as totally unrelated to the petition. 7.The 3rd Respondent filed grounds of opposition dated 12th November, 2025 contending that: the Petition is founded on a misinterpretation of the Constitution in relation to the nature, election, tenure and independence of the offices of the President and Deputy President. 8.That the Constitution establishes the two offices as distinct under Articles 130-150 and nowhere provides for an inseparable or continuing joint elective office. That the Constitution expressly requires a fresh electoral mandate for both offices at every general election under Articles 136, 137 and 148(1), and that therefore, the interpretation advanced seeking automatic eligibility or disqualification beyond a served term is unsupported by the constitutional framework. That the Petition improperly seeks to impose lifetime bans and eligibility restrictions not contemplated under the Constitution, contrary to Articles 1, 38(3)(c) and 142 and would unlawfully limit political rights and democratic participation. 9.That the Petition is speculative, premature and hypothetical and is not anchored on any existing dispute, nomination process or administrative action capable of adjudication. 10.That the Petition offends the doctrines of constitutional avoidance, ripeness, exhaustion and the political question doctrine, as it seeks pre-emptive judicial intervention into matters constitutionally reserved to the people, Parliament, political parties and the Independent Electoral and Boundaries Commission. 11.That the Petition improperly invites the Court to amend the Constitution through judicial declaration, contrary to Articles 94(5), 255–257, which prescribe exclusive formal procedures for constitutional amendment. 12.That the Court lacks jurisdiction to issue the prospective and open-ended injunctive reliefs sought, which would interfere with future constitutional functions under Article 88, undermine institutional independence under Article 249, and require the Court to police hypothetical future scenarios. 13.That the Petition seeks reliefs incapable of enforcement, including a permanent prospective injunction restraining the IEBC from future constitutional functions, contrary to Articles 88, 249 and the principle of non-interference with constitutional bodies. 14.That the Petition discloses no demonstrated violation, threat, or infringement of rights under Articles 22 or 258, and fails to meet the mandatory constitutional and procedural threshold requiring precision in pleading. 15.The 3rd Respondent also filed submissions dated 12th November, 2025 which I have considered and urged this Court to dismiss the Petition with costs to the Respondents for being frivolous, vexatious, non-justiciable and offending the doctrines of exhaustion and constitutional avoidance, and an abuse of the court process. Analysis and Determination 16.I have considered the petition as framed, the grounds of opposition and submissions. The main issue for determination is whether the Constitution contemplates that upon the expiry of the tenure of the President and Deputy president, and even by extension, a Governor and Deputy Governor are, by operation of law, deemed to have permanently retired from public service and are consequently ineligible to seek any other elective or appointive office. 17.The Petitioner's case proceeds on the premise that because the office of the Deputy President is tied to the tenure of the President and that therefore, the occupant of that office should, upon the conclusion of that tenure, be regarded as having exhausted their constitutional service and thereby become ineligible for any further public office. 18.I have carefully considered that proposition but find no constitutional or statutory basis for such an interpretation as contemplated under Article 259 of the Constitution. 19.The commencement point is the Constitution itself. Article 1 vests sovereign power in the people of Kenya, who exercise that power either directly or through their democratically elected representatives. One of the defining features of the Constitution is the expansion, rather than the restriction, of democratic participation. That objective is reflected in Article 38, which guarantees every citizen the political right to make political choices, to contest for public office and, if elected, to hold office. Those rights belong not only to candidates but also to the electorate, whose freedom to choose their leaders is an indispensable component of constitutional democracy. 20.Like every other constitutional right, political rights may be limited. However, such limitation must be expressly authorised by the Constitution or by legislation enacted in conformity with Article 24. It follows that Courts are not at liberty to create additional restrictions where none exist. To do so would not amount to interpretation; it would amount to constitutional amendment by judicial fiat.the Court cannot amend the Constitution. 21.The offices of the President, Deputy President and Governor and Deputy Governor are established by the Constitution as independent constitutional offices whose holders are elected simultaneously. The tenure of the office of Deputy President and Deputy Governor is undoubtedly connected to that of the principal office-holder. Consequently, when the President or Governor leaves office upon the expiry of a constitutional term, the tenure of the Deputy President or Deputy Governor equally comes to an end. That, however, is simply the constitutional termination of a particular office. It does not follow that the office-holder is permanently disqualified from holding any other public office and unless the Constitution itself places a limitation, the Court cannot interpret the Constitution to bring a disqualification not contemplated in the Constitution. 22.Articles 130–150 establish the offices of President and Deputy President as distinct, with Article 136 requiring the election of a President at every general election and Article 148(1) requiring a presidential candidate to nominate a Deputy President. Nothing in Article 142(2) or Chapter Six introduces permanent ineligibility or prohibits former holders of elective office from seeking future office. 23.I am in agreement with the 3rd respondent’s submission that to read in such prohibitions into the Constitution would amount to judicial amendment, contrary to Articles 94(5) and 255, 256 and 257, which prescribe exclusive procedures for constitutional amendment. 24.I further concur with counsel for the 3rd respondent that determining the eligibility of future political candidates and defining succession frameworks within the Executive or reconfiguring constitutional offices, are inherently political questions reserved for the democratic process, electoral mechanisms under Article 88 and constitutional amendment pathways under Articles 255–257 of the Constitution and not judicial intervention. 25.Furthermore, the Constitution demonstrates outstanding precision whenever it intends to prescribe qualifications or disqualifications for public office. Articles governing elective offices expressly stipulate the circumstances under which a person may contest or be barred from contesting an election. 26.Similarly, Chapter Six of the Constitution establishes standards of leadership and integrity, while the Elections Act and the Leadership and Integrity Act provide additional statutory mechanisms for enforcing those constitutional standards. Apparently, none of those provisions declare that a former Deputy President or Deputy Governor is ineligible to seek another elective or appointive office merely because he or she has completed service in that office. 27.This omission cannot be dismissed as inadvertent. The framers of the Constitution deliberately identified the grounds upon which citizens may be excluded from public office. Had it been intended that Deputy Presidents or Deputy Governors retire permanently from public service upon the expiry of their constitutional tenure, nothing would have been easier than to say so in express terms. The Constitutional silence, in my view is because no such disability was intended, not the matter was overlooked. 28.This Court is equally unable to accept the Petitioner's invitation to equate the expiry of tenure with constitutional retirement. Retirement simply signifies the lawful conclusion of service in a particular office. It does not create a lifelong constitutional disability unless the Constitution expressly attaches such a consequence. A former Deputy President or Deputy Governor leaves office in the same manner that many other constitutional office holders complete their tenure, with dignity and in accordance with the Constitution and thereafter remains, a citizen, entitled to enjoy all constitutional rights, including political rights, subject only to the qualifications and limitations prescribed by law. 29.To hold otherwise would have far-reaching consequences that the Constitution neither contemplates nor supports. It would deny the electorate the opportunity to choose experienced leaders who remain otherwise constitutionally qualified. It would also impose a significant limitation on political rights without any textual or normative foundation. Such an outcome would offend the principles of constitutional supremacy, legality and democratic governance that underpin the Constitution. 30.Constitutional interpretation in the manner stipulated in Article 259 must give effect to the text, structure, values, and purposes of the Constitution. Courts must therefore resist invitations to imply qualifications or disqualifications that the Constitution itself has not enacted. Fidelity to the Constitution requires Courts enforcing its provisions as written, not as they might prefer them to be. 31.Interpretation of the constitutional provisions should never be undertaken in a manner that amends the Constitution. That is not what liberal interpretation is about. It must be done in a manner that promotes its purposes, values and principles, advances the rule of law and contributes to good governance. 32.Accordingly, this Court finds that while the Deputy President and Deputy Governors vacate office upon the expiry of the constitutional tenure of the President and Governor respectively, such cessation of office does not render them constitutionally retired for all purposes, nor does it bar them from seeking any other elective or appointive office. Their eligibility to hold any subsequent public office must be determined solely by the qualifications and disqualifications expressly provided in the Constitution and the applicable statutes. 33.The declaration sought by the Petitioner would require this Court to introduce into the Constitution a permanent disqualification that neither the constitutional text nor legislation enacted pursuant to it, recognises. 34.That is a task, I reiterate, that is reserved for the people of Kenya acting in exercise of their constituent power through the amendment procedures established by the Constitution, under Articles 255 to 257 and not for the Court through judicial interpretation.1.For the above reasons, the Petition is found to be deficient of merit and the same is hereby dismissed.2.I make no orders as to costs.3.This file is closed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026R.E. ABURILIJUDGE