https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12762

Owiso & 2 others v Attorney-General & another (Petition E023 of 2025) [2026] KEHC 12762 (KLR) (Constitutional and Human Rights) (7 August 2026) (Judgment) Neutral citation: [2026] KEHC 12762 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E023 of 2025 M Thande, J August 7, 2026 Between Dr Owiso Owiso 1st Petitioner Khelef Khalifa 2nd Petitioner Ashioya Biko 3rd Petitioner and Hon Attorney-General 1st Respondent Independent Electoral And Boundaries Commission 2nd Respondent Judgment 1.The Petitioners approached the Court vide a Petition dated 15.10.25, seeking the following orders:i.A Declaration that Article 136(2)(a) of the Constitution of Kenya, 2010 mandates that presidential elections are to be held on the second Tuesday of August of every fifth year;ii.A Declaration that the presidential elections must be held in the fifth year following the last general election, and not after the fifth year;iii.A Declaration that, pursuant to Article 259(5) of the Constitution of Kenya, 2010, the computation of the date of the next presidential election starts on the day of the previous presidential election and ends on the day preceding the corresponding date in the next year;iv.A Declaration that the fifth year after/from the previous presidential election held on 9th August 2022 commences on 9th August 2026;v.A Declaration that the next presidential election shall be held on the second Tuesday of August 2026, being the fifth year within the meaning of Article 136(2)(a) of the Constitution of Kenya, 2010;vi.A Declaration that holding the next presidential election on any date other than August 2026 would violate and/or contravene Articles 1, 2, 3, 10, 24(1), 27(1), 28, 38(2), 38(3)(b), 38(3)(c), 81(a), 136(1), 136(2)(a), 142(1), 249, 259(1) and 259(5)(c) of the Constitution of Kenya, 2010, and would consequently be null and void;vii.A Declaration that holding the next presidential election on any date other than August 2026 would violate and/or contravene Article 13(1) of the African Charter on Human and Peoples' Rights, Articles 2(3), 2(4), 2(13), 3(1), 3(4), 3(10), 4, 5, 17 and 32(7) of the African Charter on Democracy, Elections and Governance, and Article 25(b) of the International Covenant on Civil and Political Rights;viii.A Declaration that, by operation of Article 136(2)(a) of the Constitution of Kenya, 2010, which requires presidential elections to be held in the fifth year, a presidential term is not a full five years;ix.A Declaration that Article 142 of the Constitution of Kenya, 2010, or indeed any other provision of the Constitution or of any other law, does not confer a full five-year term in office on the President;x.An Order directing the 2nd Respondent to proceed to hold the next presidential election on the second Tuesday of August 2026;xi.There be no orders as to costs; andxii.Any further relief or orders that the Honourable Court may deem just and fit to grant. 2.The Petitioner’s case as set out in the Petition and supporting affidavits is that the most recent presidential election in Kenya was held on 9.8.22 and pursuant to Article 136(2)(a) of the Constitution, the next presidential election should be held on the second Tuesday in August 2026, which is the 5th year from 9.8.22. Further, that the date and frequency of the election as stipulated in Article 136(2)(a) is also expressly designed to guarantee and uphold qualified Kenyans’ right under Article 38(3)(c) to be candidates for the office of president; in other words, qualified Kenyans have a constitutional right to be candidates in presidential elections held regularly on the second Tuesday in August of the fifth year. 3.The Petitioners stated that in fulfilment of the provisions of Article 262 of the Constitution and paragraph 9(1) of the Sixth Schedule of the Constitution, the first presidential elections were held on 4.3.13. In terms of computing the date of the second presidential elections as guided by Article 136(2)(a) of the Constitution, the time started running on 4.3.13. The fifth year from that date was the period from 4.3.17 to midnight of 3.3.18. Consequently, the second Tuesday of August of that fifth year fell on 8.8.17 and the presidential elections were held on that date. The Petitioners contend that there is no provision in the Constitution or indeed in any other law, that supports any assertion that the president has to serve a term of 5 years; that in fact after the 2013 elections, the then President served for a period of 4 years and 5 months from the date 9.4.13 to the date of the next elections on 8.8.17. 4.The Petitioners further stated that applying the formula for construing time as expressed in Article 259(5)(c) of the Constitution in determining the fifth year within the meaning of Article 136(2)(a), a legal, precise and mathematical breakdown of years following the most recent presidential election held on 09 August 2022 is as follows: 1st year: from 09 August 2022 to midnight of 08 August 2023 2nd year: from 09 August 2023 to midnight of 08 August 2024 3rd year: from 09 August 2024 to midnight of 08 August 2025 4th year: from 09 August 2025 to midnight of 08 August 2026 5th year: from 09 August 2026 to midnight of 08 August 2027. 5.It is the Petitioners’ assertion that based on this formula, the fifth year from the previous election of 9.8.22 commences on 9.8.26. Consequently, pursuant to Article 136(2)(a) of the Constitution Kenya’s next presidential election must be held on the second Tuesday of August 2026, being the fifth year. 6.The Petitioners thus contend that failure to adhere to the constitutionally ordained timelines for conducting the next presidential election would therefore bring into question the validity of the said election and usurp the sovereignty of the people of Kenya as affirmed in Article 1 of the Constitution. It would also make a mockery of the supremacy of the Constitution as enshrined in Article 2, and would constitute an attempt to establish a government otherwise than in compliance with the Constitution contrary to Article 3(2). 7.Further, that to hold the next presidential election on any date other than the second Tuesday in August of the fifth year from 9.8.22, would violate national values under Articles 10 and principles of the electoral system, right to vote and right to contest in presidential elections under Articles 38(2), 38(3)(b) and 38(3)(c)81 of the Constitution. 8.Additionally, that there would be a violation of Article 13(1) of the African Charter on Human and Peoples’ Rights (1981), Articles 2(3), 2(13), 3(4), 4, 5, 17 and 32(7) of the African Charter on Democracy, Elections and Governance (2007), and Article 25(b) of the International Covenant on Civil and Political Rights (1966). Further, that there would be a violation of principles of democratic government as enshrined in Articles 2(3), 2(4), 2(13), 3(4), 3(10), 4, 5, 17 and 32(7) of the African Charter on Democracy, Elections and 13/19 Governance (2007) as this would be tantamount to amending or revising the Constitution in a manner not contemplated in said Constitution, which act would constitute illegal means of accessing and maintaining power within the meaning of Article 23 of ACDEG (also a form of unconstitutional change of government). 9.The Petition is opposed by the 1st Respondent vide a preliminary objection dated 3.11.25. The objections are:1.That this court lacks the jurisdiction to hear this matter in view of the provisions set out under the Constitution and the petition ought to be struck out as per decision of the Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR.2.That the petition seeks declaratory orders whose import is the pre-emptive usurpation of the legal mandate of the Independent Electoral and Boundaries Commission.3.That the petition is an abuse of the court process as the petitioners are essentially seeking this Honourable court to issue an advisory opinion which is an exclusive mandate of the Supreme Court as provided for under Article 163(6) of the Constitution of which petitioners lack the requisite locus standi.4.That the issues raised are academic and inviting the Court to issue what would amount to an advisory opinion or an issue touching on the presidential election whose jurisdiction not available to the High Court under Article 165 of the Constitution as was held by the Supreme Court in Advisory Opinion No. 2 of 2012 (2012) eKLR and Petition 152 of 2013 The Africa Centre for Open Governance vs The Independent Electoral And Boundaries Commission (2013) eKLR.5.That the petition is incompetent as petitioners are asylum shopping having filed the same petition before the Supreme court in Nairobi, that is Supreme Court Petition No. E20 of 2025 Dr.Owiso Owiso & Others vs The Attorney General &Others which matter was withdrawn after a preliminary objection on jurisdiction was raised. 10.The 1st Respondent also filed grounds of opposition dated 2.12.25 reiterating the objections in the preliminary objection. Other grounds are that under Article 142(1) of the Constitution, the President’s term of office begins on the date of swearing-in and ends when the next President is sworn in. Consequently, computation of the “fifth year” cannot lawfully be anchored on the election date as perceived by the Petitioners; that the petition is moot and void as from the Supreme court opinion in Advisory Opinion No. E004 of 2024 Independent Electoral and Boundaries Commission and Attorney General (Interested Party) where court held that it is only the 2nd interested party that has locus and mandate to raise issues relating to concerns of election timelines under the Constitution and Statute; that a harmonious reading of Articles 136(2)(a) and 142(1) demonstrates that the Constitution safeguards both regular elections and continuity of governance; that the Petitioners’ interpretation would result in the unlawful truncation of the President’s term, contrary to the express language and spirit of Article 142(1); that granting the orders sought would effectively curtail the current President’s constitutionally secured five-year mandate and amount to an unconstitutional alteration of the sovereign will of the people as expressed in the 2022 General Election; that the national governance framework including the terms of Parliament (Article102(1)), County Assemblies and Governors (Article 177(4)), and budget cycles is synchronized around the 2022 election, making August 2027 the constitutionally consistent and practical date for the next general election; that the Petitioners’ reliance on Article 259(5)(c) is misplaced, as that provision is a general interpretive aid and cannot supersede the express and specific provisions governing tenure and elections under Articles 136 and 142. 11.Further grounds are that the Petition is premature, speculative, and non-justiciable; that no actual decision or act by the 1st or 2nd Respondent has been shown to contravene the Constitution or to set the next general election outside the constitutional framework. 12.Further grounds are that in line with the principles laid down in Anarita Karimi Njeru v. Republic [1979] eKLR, the Petitioners have failed to plead with reasonable precision the specific provisions of the Constitution allegedly violated, the manner of such violation, and the injury suffered and should be struck out; that the Petition improperly invites the Court to interfere with the mandate of the 2nd Respondent under Article 88 of the Constitution, which is independent and exclusively responsible for conducting and supervising elections; that the reliefs sought, if granted, would cause grave disruption to the constitutional order by terminating the term of office of the President, Parliament, and County Governments before the expiry of 5 years, by disturbing the constitutional budgetary and administrative cycles and breaching the legitimate expectation of the electorate that their elected representatives will serve a full 5 -year term; that constitutional interpretation must promote the rule of law, good governance, and institutional stability and that the Petitioners’ interpretation would create uncertainty, instability, and a potential constitutional crisis. Lastly, that the Petition discloses no violation or threatened violation of the Constitution or any right and is therefore frivolous, vexatious, and an abuse of the due process of this Court. 13.On its part, the 2nd Respondent filed a reply to petition dated 2.2.26 in opposition to the Petition, terming the same premature, speculative, hypothetical and without merit. Further, that the reliefs sought disclose a request for authoritative guidance on the computation of electoral timelines divorced from an existing controversy; that such relief would, in effect, amount to an advisory opinion which is the preserve of the Supreme Court and only at the instance of designated constitutional actors. 14.The 2nd Respondent further avers that the Constitution vests the conduct and supervision of elections exclusively in it, including operational decisions relating to electoral timelines within the constitutional framework; that judicial directives that purport to pre-determine or constrain how this mandate should be exercised would undermine the institutional independence of the Commission and blur the constitutionally entrenched separation of powers; that the reliefs sought, if granted, would pre-emptively fetter the discretion of the IEBC before it has exercised its lawful functions. 15.The 2nd Respondent further avers that constitutional interpretation must be undertaken holistically and purposively so as to preserve the continuity, coherence and stability of governance. Additionally, that provisions governing elections and tenure cannot be read in isolation and that any interpretation that results in the shortening of the President’s term, alongside that of Parliament and County Governments, would contradict the express text, structural logic and synchronized design of the Constitution. The 2nd Respondent posits that granting the orders sought would have far-reaching consequences beyond the parties before the Court. It would disrupt settled governance cycles, unsettle budgetary and administrative planning and undermine the legitimate expectation of the electorate that their elected representatives will serve their full constitutionally prescribed terms. 16.The 2nd Respondent further avers that the Petition fails to meet the established threshold for constitutional pleadings. That although numerous constitutional provisions and international instruments are cited, there is no precise articulation of the manner of their violation, the specific actors responsible or the injury allegedly suffered. They have not demonstrated any specific act or omission by the 2nd Respondent constituting such violations 17.The 2nd Respondent avers that the Petitioners’ computation of time and that the next general election should be held on 11th August 2026 is incorrect and inconsistent with the Constitution; that the correct computation places the next general election on 8th August 2027, being the second Tuesday in August in the fifth year following the last general election held on 9th August 2022. Articles 101(1), 136(2)(a), 180(1) and 177(1)(a) of the Constitution provide that the elections for Members of Parliament, the President, County Governors and Members of County Assemblies shall be held on the second Tuesday in August, in every fifth year. Additionally, Article 177(4) provides that a Member of a County Assembly shall hold office for a term of five years. A broad, literal, harmonious and purposive reading of the Constitution denotes that the term of office of all elected officials under Articles 101(1), 136(2)(a), 180(1) and 177(1)(a) is five years and that the elections are held on the same date and any interpretation to the contrary would contradict the intended harmonious and simultaneous election cycle. 18.Citing Article 259(5)(c) and the Court of Appeal decision in Attorney General & another v Andrew Kiplimo Sang Muge & 2 others [2017] eKLR, the 2nd Respondent asserted that the five-year term from 9th August 2022 ends on 8th August 2027. Therefore, the next general election shall be held on Tuesday, 8th August 2027, being the second Tuesday of August in the fifth year. It was argued that accepting the Petitioners’ interpretation would lead to several constitutional and practical inconsistencies. It would effectively reduce the terms of the President, Governors and Members of Parliament to four years, contrary to the express provisions of the Constitution. It would also result in staggered election dates for national and county elective offices, thereby undermining the uniformity and logistical coherence envisioned under Articles 101(1), 136(2)(a), 177(1)(a) and 180(1). Additionally, that such an approach would be against the public interest, considering that elections are costly exercises with significant budgetary implications. The 2nd Respondent further avers that the interpretation of Article 136(2)(a) as proposed by the Petitioners would effectively nullify the constitutionally guaranteed five-year term for all six elective offices filled during a general election, as provided for under Article 177(4) of the Constitution. 19.The 2nd Respondent therefore urges the Court to find that the correct date for the next general election is 8th August 2027, as this aligns with the Constitution and preserves the full five-year term of elective offices i.e August 2022-2023, August 2023-2024, August 2024-25, August 2025-26, August 2026-27. 20.The 2nd Respondent further urged that the Petition is premature, speculative and non-justiciable, having been brought in the absence of any concrete act, omission or decision by the 2nd Respondent capable of grounding constitutional adjudication. Further that the Petition improperly invites this Court to render an advisory opinion and to pre-emptively interfere with the constitutional mandate and independence of the 2nd Respondent, contrary to Articles 88 and 249 of the Constitution. 21.The 2nd Respondent thus urged the Court to dismiss the Petition in its entirety for want of jurisdiction and merit and to uphold the constitutional framework governing electoral timelines, institutional independence and orderly democratic governance. 22.Parties filed their written submissions save for the 1st Respondent who relied on the grounds of opposition filed and the submissions of the 2nd Respondent. I have considered the Petition, responses and submissions. The issues for determination are:i.Whether this Court has jurisdiction to entertain the Petition.ii.Whether the Petition is justiciable.iii.What is the proper interpretation of Articles 136(2)(a) and 142(1) of the Constitution with regard to the date of the election of the President.iv.Whether the Petitioners are entitled to the reliefs sought. Whether this Court has jurisdiction to entertain the Petition 23.The Petition calls for the interpretation of Articles 136(2)(a) and 142(1) of the Constitution. The jurisdiction of this Court to interpret the Constitution is set out in Article 165(3)(d) as follows:Subject to clause (5), the High Court shall have—(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—i.the question whether any law is inconsistent with or in contravention of this Constitution;ii.the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;iii.any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; andiv.a question relating to conflict of laws under Article 191; 24.Under the above provision, it is the High Court that has been given the primary mandate for constitutional interpretation. This was affirmed in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) where the Supreme Court stated:Further, we note that the High Court has been entrusted with the mandate to interpret the Constitution and where it has discharged this task, one can only challenge its Judgment by way of appeal to the Court of Appeal and, if still not satisfied, then to the Supreme Court. To this end, the High Court should be allowed to duly discharge its constitutional mandate without interference. This was the holding of this Court in the Matter of Interim Independent Electoral Commission (supra), stated in that context as follows (Para. 43):“… The Supreme Court too, for the purpose of rendering an Advisory Opinion, may take its position as guided by its own interpretation of the Constitution. Only where litigation takes place entailing issues of constitutional interpretation, must the matter come in the first place before the High Court, with the effect that interpretation of the Constitution by both the Court of Appeal and the Supreme Court will have been limited to the appellate stages”. 25.It has been argued by the Respondents that the Petitioners are essentially seeking an advisory opinion which is an exclusive mandate of the Supreme Court as provided for under Article 163(6) of the Constitution of which Petitioners lack the requisite locus standi. 26.Article 163(6) which confers upon the Supreme Court the jurisdiction to give advisory opinions provides:The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. 27.In IEBC v Attorney General, (Advisory Opinion E004 of 2024) [2025] KESC 57, the Supreme Court while considering its jurisdiction under Article 163(3) of the Constitution stated in part:(27)At the outset of any matter, we have to determine whether the jurisdiction of this Court to render an advisory Opinion has been properly invoked, and if so, whether the Court should exercise its discretion to render the Opinion as prayed. Towards this end, it is instructive to recall our decision in Re Matter of Gender Representation to the National Assembly & Senate; Advisory Opinion No. 2 of 2012, [2012] eKLR; wherein the following principles were laid down to guide the Court on the exercise of its jurisdiction under Article 163 (6) of the Constitution. At paragraph 83 of that judgment, this Court stated:i.For a reference to qualify for the Supreme Court’s Advisory Opinion discretion, it must fall within the four corners of Article 163(6): it must be “a matter concerning county government.” The question as to whether a matter is one “concerning county government “will be determined by the Court on a case-by-case basis.ii.The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae. 28.The issue before this Court is the interpretation of Articles 136(2)(a) and 142(1) of the Constitution, with regard to the date of the election of the President and term of office. What is before the Court is not “a matter concerning county government”. As such, it cannot be said that what the Petitioners seek in this Petition is an advisory opinion as contemplated under Article 163(6). 29.This Court therefore has the requisite jurisdiction to entertain the Petition before it. Whether the Petition is justiciable 30.It is the Respondents’ contention that the Petition is hypothetical and therefore not justiciable. They assert that the doctrine of justiciability demands that a petitioner demonstrates the existence of an actual or imminent controversy arising from a specific act or omission attributable to a known actor. Further, that the Petition is asking the Court to pre-emptively interfere with the constitutional mandate and independence of the 2nd Respondent, contrary to Articles 88 and 249 of the Constitution. Further, that constitutional jurisdiction cannot be triggered by conjecture, suspicion or hypothetical fears. For this point, reliance was placed on International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR where the Petitioners state that it was held that a party alleging violation of the Constitution must establish a factual foundation showing a real and present threat and that courts will not entertain petitions premised on speculative or anticipatory grievances. 31.The Petitioners state that they seek the interpretation of Article 136(2)(a) of the Constitution on the question of when the next presidential election should be held after the last election of 9th August 2022. They seek a declaration that the next general election should be held on the 2nd Tuesday of August, 2026 which is the 5th year after the last election. They contend that the 2nd Respondent contravened Article 136(2)(a) by conducting the third post 2010 presidential election on 9th August 2022 and not 10th August 2021, which was the second Tuesday in the fifth year. 32.Article 258 of the Constitution provides for the enforcement of the Constitution and states:(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members. 33.This Court has a duty to uphold and enforce the Constitution. To this end, under Article 258(1) every person has the right to institute court proceedings, claiming that the Constitution has been contravened, or is threatened with contravention. Such proceedings may be instituted not just by a person acting in their own interest, but in the public interest. 34.That the Court should not engage in hypothetical and academic issues was stated in John Harun Mwau & 3 others v Attorney General & 2 others [2012] KEHC 5438 (KLR) by a 3-Judge bench of this Court as follows:118.We also agree with the submissions of Prof. Ghai that this court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under Article 165(3) (d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy. In this case the dispute before the court falls squarely within the province of Article 258 of the Constitution. 35.From the material placed before the Court, it is quite evident that the Petitioners have instituted the proceedings herein in the public interest. Further, the Petitioners have raised substantive issues concerning the threat to violation of the provisions of Article 136(2)(a) as happened in the last presidential election. The Petitioners assert that failure to adhere to the constitutional timelines for conducting the next election of the President would bring into question the validity of the election and violate various constitutional provisions and international instruments. 36.My view is that the issues raised in the Petition are not hypothetical or speculative but real issues that require resolution by this constitutional Court. If this Court were to decline jurisdiction, it would not only cede its authority, but fail to protect the Constitution as enjoined under Article 258 thereof. I therefore do not subscribe to the notion that under no circumstances can the Court intervene where there is threatened contravention of the Constitution. In this regard, I associate with the holding in Mwilu v Judicial Service Commission & another; Dari Limited & another (Interested Parties) [2025] KEHC 4764 (KLR) where Mwamuye, J. statedThose three Articles taken together mean that a Petitioner need not wait for the completion of an unconstitutionality or illegality to move to the High Court. A threatened violation of a right or fundamental freedom, or even the initiation of an action that is alleged to contravene the Constitution or a statute, is sufficient basis to move to the High Court. A Petitioner who moves to the High Court at the earliest opportunity is in fact, ironically, limiting the extent of the alleged breach by the alleged offending party(ies); and where that alleged breach involves the expenditure of public funds, that Petitioner’s early action may result in the conservation of scarce public funds that would otherwise have been expended in a completed process that is later quashed if the Petitioner’s petition succeeds. 37.My finding therefore, is that this Petition is justiciable and worthy of the Court’s consideration. What is the proper interpretation of Articles 136(2)(a) and 142(1) of the Constitution with regard to the date of the election of the President 38.The Petitioners stated that the last presidential election was held on 9th August 2022. Pursuant to the provisions of Article 136(2)(a) of the Constitution, the next presidential election should be held on the second Tuesday in August, 2026, being the fifth year from 9th August 2022. The Petitioners submitted that construing time under Article 259(5)(c) a legal, precise and mathematical breakdown of years following the said presidential election of 9th August 2022, is as follows: 1st year: from 09 August 2022 to midnight of 08 August 2023. 2nd year: from 09 August 2023 to midnight of 08 August 2024. 3rd year: from 09 August 2024 to midnight of 08 August 2025. 4th year: from 09 August 2025 to midnight of 08 August 2026. 5th year: from 09 August 2026 to midnight of 08 August 2027. 39.The Petitioners argued that the 2nd Respondent has previously complied with this computation of time. The first post 2010 presidential election was held on 4th March 2013. By holding the second presidential election on 8th August 2017, as guided by Article 136(2)(a), the 2nd Respondent correctly computed time as follows: 1st year: from 04 March 2013 to midnight of 03 March 2014. 2nd year: from 04 March 2014 to midnight of 03 March 2015. 3rd year: from 04 March 2015 to midnight of 03 March 2016. 4th year: from 04 March 2016 to midnight of 03 March 2017. 5th year: from 04 March 2017 to midnight of 03 March 2018. 40.The Petitioners asserted that as regards the third presidential election conducted on 9th August 2022, the 2nd Respondent misapplied Article 136(2)(a) and got it all wrong. This they argue is because the time computed between the 2017 presidential election and the 2022 election is as follows: 1st year: from 08 August 2017 to midnight of 07 August 2018. 2nd year: from 08 August 2018 to midnight of 07 August 2019. 3rd year: from 08 August 2019 to midnight of 07 August 2020. 4th year: from 08 August 2020 to midnight of 07 August 2021. 5th year: from 08 August 2021 to midnight of 07 August 2022. 41.The Petitioners submitted that the proper date for the presidential elections ought to have been 10th August 2021, being the second Tuesday in August of the fifth year. 42.On their part, the Respondents submitted that this interpretation would lead to an absurd and constitutionally untenable outcome of holding the election approximately 1 year before the constitutionally guaranteed 5 year term of office of elected officials. Further, that Article 177(4) expressly provide that Members of County Assemblies hold office for a term of 5 years. It was submitted that a reading of Article 136(2)(a) that results in truncating these terms to 4 years would directly contradict these express provisions and defeat the constitutional intention of fixed and predictable electoral cycles. Further, that such an interpretation would also fracture the uniformity of the electoral calendar by creating staggered or misaligned election dates for national and county offices; that the Constitution deliberately provides for simultaneous elections across all six elective offices to ensure coherence, efficiency and stability in governance. 43.In interpreting the constitutional provisions in question, the Court is guided by Article 259(1) which provides that the Constitution shall be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights and permits development of the law and contributes to good governance. The Court is thus commanded to take a purposive approach in interpreting the Constitution which is a transformative charter, intended to break from the past and look to the future. In this regard, the Court is guided by the holding in In the Matter of Interim Independent Electoral Commission [2011] eKLR where the Supreme Court stated:The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts. 44.With these principles in mind, I will proceed to consider the interpretation of the provisions in question. 45.Article 136 of the Constitution makes provision for election of the President. Clause (2)(a) thereof provides as follows:(2)An election of the President shall be held–(a)on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year; 46.Prior to the promulgation of the current Constitution, the date of the presidential election was used a secret weapon by the incumbent President. Section 3 of the retired Constitution provided that “whenever Parliament is dissolved, an election of a President shall be held at the ensuing general election”. Section 59 conferred upon the President the immense power to dissolve and prorogue Parliament “at any time”. As such, elections could not be held without the President’s say so. This power thus gave the incumbent President the unfair advantage of dissolving parliament to pave the way for general elections, at his convenience. 47.Article 136(2)(a) of the Constitution brought in the long yearned for certainty, with regard to the date of the election of the president. In the clamour for a new constitutional dispensation, predictability of the election date was understandably, of paramount importance to the people of Kenya. 48.In Attorney General & another v Andrew Kiplimo Sang Muge & 2 others [2017] KECA 191 (KLR), the Court of Appeal outlined the historical background of the date of the election of the president and stated:There is sufficient historical justification for the adoption of the formula “the second Tuesday in August, in every fifth year” in Articles 101, 136(2)(a), 177(1)(a) and 180(1) of the Constitution. Section 59 of the former Constitution vested in the President the sole power to dissolve and prorogue Parliament. Elections could not be called unless the President had dissolved Parliament. During this period the election date was regarded as the Executive’s “secret weapon”, unleashed only at a time appropriate to the Executive. It is evident from the archives of Parliament that, because of this, the clamour for a fixed election date was already growing as far back as 1995. This clamour was sustained throughout the early periods of the constitution making process. See Kenya National Assembly Official Record (Hansard) of 21st March 1995, 14th October 1997,11th October 2000, 13th December 2001, 25th July 2002 and 5th November 2008.The Constitution of Kenya Review Commission (CKRC) reports also confirm that the public made submissions before for the introduction of a fixed, predictable and determinable election date as part of electoral reforms. The Report Of the Constitution Of Kenya Review Commission (KRC), Volume One; The Main Report, (2003) observed that timing of the general election was a critical component of electoral process and that the President should not have the power to determine the election dates. The people of Kenya, according to the report, demanded that future elections be held regularly, in a predictable, transparent and efficient manner. The Commission ultimately recommended that;“…..the General Election should be held on the first Tuesday of the second full week of August after every five years” and that,“…..the President shall serve for a maximum of a two five-year terms.”(See page 184 of the Report). 49.As can be seen from the above excerpt of the CKRC report, the public made submissions for the introduction of a fixed, predictable and determinable election date as part of electoral reforms. The Constitution of Kenya Review Commission considered the submissions and accordingly made recommendations that the general election be held on the first Tuesday of the second full week of August after every five years. Notably, that recommendation is not what eventually ended up in the final document which provides at Article 136(2)(a) that the election the President shall be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year. 50.It is not clear why the recommendation in the CKRC report was not captured in the final document and was in fact changed. There is a clear distinction between “after every five years” as recommended in the CKRC report and “in every fifth year” as provided in the Constitution. The election of the President is to be held on the second Tuesday of August in every fifth year after the previous election and not after the fifth year. 51.Article 259(5)(c) provides:(5)In calculating time between two events for any purpose under this Constitution, if the time is expressed-(c)as years, the period of time ends at the beginning of the date of the relevant year that corresponds to the date on which the period began. 52.Taking into account the provisions of Article 136(2)(a) as read with Article 259(5)(c), the formula set out by the Petitioners that the fifth year after the election of 9th August 2022 begins on 9th August 2026 is correct. The calendar shows that the second Tuesday of August in the fifth year is 11th August 2026. 53.It is noted that in the Andrew Kiplimo Sang Muge case (supra), the Court of Appeal cited the provisions of Articles 101(1), 102(1), 136(2), 177(1) and 180(1) as well as 259(5) and acknowledged that the general election would be held on the second Tuesday in August, in every fifth year. This is how the Court rendered itself:Going by historical trend it should have followed that the second general election would have been scheduled for 4th March, 2018, but for the provisions of Articles 101(1), 102(1), 136(2), 177(1) and 180(1), which cumulatively provide that the general election of the President, Members of Parliament, Governors and MCAs after the first elections would all be held on the same day, being the second Tuesday in August, in every fifth year.We refer to Article 259(5), on the computation of time under the Constitution providing that;“ (5)In calculating time between two events for any purpose under this Constitution, if the time is expressed—………(c)as years, the period of time ends at the beginning of the date of the relevant year that corresponds to the date on which the period began.”, With the formula and applying Article 259 (5) (c) aforesaid the question of subsequent elections becomes an easy one to determine. Applying it, the second Tuesday in August, in the fifth year from 4th March, 2013 fell on 8th August, 2017.“The fifth year” would mean that each election year begins in August every second Tuesday and ends on the eve of the second Tuesday in August of the subsequent year to make 1 year. Therefore, counting 365 days for 1 year and taking into consideration the exact month from one year to the subsequent year, the 1st year would be counted from 8th August 2017 to 8th August 2018; 2nd year from 8th August 2018 to 8th August 2019; 3rd year from 8th August 2019 to 8th August 2020; 4th year would be from 8th August 2020 to 8th August 2021; 5th year would be from 8th August 2021 to 8th August 2022. “The second Tuesday in August in every fifth year”, after the elections of 8th August, 2017 would take the next general election date to 11th August 2022. 54.The formula applied by the Court of Appeal to work out the fifth year after the general election of 2017 and 2022 accords with the cited constitutional provisions and with the Petitioner’s case. This is the same formula to be adopted with regard to the next general election. 55.It is worthy of note that the Court of Appeal found that in relation to the 2017 general election, the second Tuesday in August, in the fifth year from 4th March, 2013 fell on 8th August, 2017. In relation to the subsequent general election, the Court of Appeal found that the 5th year would be from 8th August 2021 to 8th August 2022 after 8th August 2017. Curiously, the Court then concluded that “The second Tuesday in August in every fifth year”, after the elections of 8th August, 2017 would take the next general election date to 11th August 2022. Looking at the calendar however, the second Tuesday of August in that fifth year was actually 10th August 2021 and not 11th August 2022. 56.The Court notes that the Respondents contend that the interpretation of Article 136(2) as proposed by the Petitioners will lead to absurdity as Article 177(4) provides that a county assembly is elected for a term of five years. To this I can do no better than quote the following words of the Court of Appeal referring to the principles against absurdity in Centre for Human Rights Education and Awareness & 2 Others. v John Harun Mwau, Civil Appeal No. 74 of 2012:Applying the above principles to the current circumstances, reading Articles 177(1)(a) and 177(4) and the Constitution holistically and bearing in mind the history of constitution- making in this country, we hold the firm view that there is no contradiction in terms or application. Any other construction would produce an absurd result or have the tendency of one provision destroying the other, instead of sustaining each other. 57.It bears repeating that the Constitution is the supreme law of the land. Article 2 provides:1)This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.2)…3)The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. 58.The validity or legality of any of the provisions of the Constitution cannot be subject to any challenge before any court or other State organ. Accordingly, the Constitution cannot subvert itself. 59.A careful reading of the Constitution will show that the election of all 6 elective positions are pegged on the election of Members of Parliament. Article 136(2)(a) provides that the election of the President shall be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year. Article 177(1)(a) provides that a county assembly consists of members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year. Similarly, Article 180(1) provides that the county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year. My view is that it is these provisions that should be read alongside and against each other and interpreted as an integrated whole so as to maintain a rational explication of what the Constitution is to be taken to mean. 60.In In the Matter of Kenya National Commission on Human Rights [2014] eKLR the Supreme Court had this to say about holistic interpretation of the Constitution:But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result. 61.From their averments and submissions, it can be seen that the Respondents are determined to hold the position that somehow, the Constitution guarantees the President a 5-year term in office. 62.Article 142(1) of the Constitution provides for the term of office of the President as follows:The President shall hold office for a term beginning on the date on which the President was sworn in, and ending when the person next elected President in accordance with Article 136 (2) (a) is sworn in. 63.It is clear that the term of office of the President is not pegged on years. The provision states unequivocally that the term of office of the President shall begin on the date the President is sworn in and shall end when the person next elected President pursuant to Article 136(2)(a), is sworn in. The wording is explicit and there can be no other way of interpreting it other than as provided. As such, contrary to the assertion by the Respondents, there is no provision in the Constitution that guarantees to the President a 5 year term. Any mention of a term for elected officials is Article 177(4) which provides that a county assembly is elected for a term of five years. 64.The Respondents contend that an interpretation of Article 136(2)(a) as proposed by the Petitioners would effectively nullify the constitutionally guaranteed five-year term for all six elective offices filled during a general election. This in my view, is the result that they desire in the interpretation of the provision. However, there is no provision, save for members of the county assemblies, that makes such a guarantee. To hold thus would constitute an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at that desired result. 65.It was further asserted that the grant of the orders would undermine the legitimate expectation of the electorate that their elected representatives will serve their full constitutionally prescribed 5 year terms. For a legitimate expectation to be upheld by the Court, it must be anchored on a legality. I have already stated that the Constitution does not guarantee to the President a 5 year term in office. As such, the doctrine of legitimate expectation cannot operate against clear provisions of the law. On this point, I associate with Mativo, J. (as he then was) who in Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte) (Judicial Review Application E023 of 2021) [2022] KEHC 5 (KLR) (24 January 2022) (Judgment), Mativo, J. (as he then was) stated:The value of legality in law has led to the requirement that the expectation must be one of lawful administrative action before it can be either reasonable or legitimate. Legality therefore seems to take precedence over legal certainty in law.It follows that statutory words override an expectation howsoever founded. Thus, a decision maker cannot be required to act against clear provisions of a statute just to meet ones expectations otherwise his decision would be out rightly illegal and a violation of the principle of legality, a key principle in Rule of Law. There cannot be legitimate expectation against the clear provisions of a statute. At the risk of repeating myself, I state that the doctrine cannot operate against clear provisions of the law and that it must be devoid of relevant qualification. 66.It was further asserted by the Respondents that the grant of the orders sought herein would disrupt settled governance cycles, unsettle budgetary and administrative planning. My view is that this alleged disruption is no justification for violation of express provisions of the Constitution 67.The Court thus finds that 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. 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. Additionally, having found that there is no provision in the Constitution that guarantees to the President a 5 year term, the correct interpretation of Article 142(1) is that the current President’s term that began on 13th September 2022 being the date he was sworn in, shall end when the person next elected President is sworn in, notwithstanding that he will not have served for 5 years. 68.I now turn to the contention that the Petitioners have failed to demonstrate any specific act, omission or decision by the 2nd Respondent that constitutes a violation of the Constitution or the cited international instruments. 69.The Court takes judicial notice of the fact that the 2nd Respondent has made no preparations for the general election on 11th August 2026. All indications are that the 2nd Respondent is preparing for election of the President on 10th August 2027. Indeed, in his foreword to the 2nd Respondent’s Election Operation Plan 2025-2027, its chairman Erastus Edung Ethekon stated:On 10th August 2027, Kenya will hold the fourth General Election under the Constitution of Kenya 2010. 70.On page 20 of the Election Operation Plan, among the key highlights is:An election of the President of the Republic of Kenya shall be held on Tuesday, 10th August, 2027. (See https://www.iebc.or.ke accessed on 4.8.26). 71.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. 72.Holding the said election on a date other than 11th August 2026 constitutes a violation by the 2nd Respondent of the express provisions of Article 136(2)(a) of the Constitution, and the same will be invalid. The 2nd Respondent has further contravened the provisions of Article 3 which enjoins it to respect, uphold and defend the Constitution. The conduct of the 2nd Respondent also contravenes the provisions of Article 136(1) which states that the President shall be elected by registered voters in a national election conducted in accordance with the Constitution and any Act of Parliament regulating presidential elections. Additionally, failure by the 2nd Respondent to adhere to the said provisions, undermines the rule of law which is one of the national values and principle of governance enshrined in Article 10. Whether the Petitioners are entitled to the reliefs sought 73.The Court appreciates that the 2nd Respondent is one of the independent commissions listed in Chapter Fifteen of the Constitution. Article 249(2)(a) safeguards the independence of the 2nd Respondent and provides that it is subject only to the Constitution and the law. As an independent commission, the 2nd Respondent is enjoined under Article 249(1) to secure the observance by all State organs of democratic values and principles and to promote constitutionalism. Where the 2nd Respondent fails to do what is required of it under the Constitution, the Court must intervene. 74.The Petitioners seek declaratory orders relating to the next election of the President. They also seek an order directing the 2nd Respondent to hold the next election of the President on the second Tuesday of August, 2026. 75.Declaratory orders are intended to formally clarify and conclusively define the legal rights, duties, status, or obligations of parties in a dispute without requiring any coercive enforcement, damages, or specific action. In Attorney General v Bala [2023] KECA 117 (KLR), the Court of Appeal had this to say about the purpose of a declaratory order:A declaratory order means a ruling that is explanatory in purpose; it is designed to clarify what before was uncertain or doubtful. A declaratory order constitutes a declaration of rights between parties to a dispute and is binding as to both present and future rights. Declaratory judgments are typically sought as a means of preventing a dispute by removing ‘legal uncertainty’ as to the applicable law and the rights and obligations of the parties. HWR Wade in “Administrative Law” 5th Edition at page 523 stated as follows in reference to a declaratory judgment: “A declaratory judgment by itself merely states some existing legal situation. It requires no one to do anything and to disregard it will not be contempt of court. By enabling a party to discover what his legal position is, it opens the way to the use of other remedies to give effect to it, if that should be necessary.”It is clear from the above definition that a declaratory judgment is very limited in its powers. All it can do is clarify a legal relationship or state of affairs by stating the court’s opinion of it. In other words, it states the court's authoritative opinion regarding the exact nature of the legal matter without requiring the parties to do anything. 76.This Court will make such the declarations as are necessary to clarify the law and remove legal uncertainty with regard to the date of the next election of the President. 77.As regards the order directing the 2nd Respondent to hold the next election of the President on the second Tuesday of August, 2026, it is noted that the Petition was filed rather late in the day in October 2025. To grant the order as sought will be to grant an order that is logistically impossible to implement, given that the 2nd Respondent, prospective candidates for elective posts and Kenyans in general are all geared towards an election in August 2027. 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. 78.On costs, the law is that costs follow the event. The Petitioners have however urged that there be no orders as to costs. 79.In the end and after the foregoing analysis, the Court makes the following orders:i.A Declaration is hereby made that pursuant to Article 136(2)(a) of the Constitution, the election of the President must be held on the second Tuesday of August in the fifth year following the previous general election, and not after the fifth year;ii.A Declaration is hereby made that the fifth year after the previous presidential election held on 9th August 2022 commences on 9th August 2026;iii.A Declaration is hereby made that holding the next presidential election on any date other than the second Tuesday in August 2026 will violate and contravene Articles 2, 3, 10, 136(1) & (2)(a), 142(1), 249, 259(1) & (5)(c) of the Constitution, and will consequently be null and void;iv.The declaration of invalidity of the election is suspended until after the next general election is held to allow the 2nd Respondent to correct the defect.v.A Declaration is hereby made that, by operation of Article 136(2)(a) of the Constitution, the term of office of the President is not 5 years.vi.A Declaration is hereby made that neither Article 142 nor any other provision of the Constitution confers upon the President a five-year term in office.vii.All other prayers in the Petition not specifically granted are hereby dismissed.viii.There shall be no order as to costs. DATED SIGNED AND DELIVERED IN MALINDI THIS 7TH DAY OF AUGUST 2026.................M. THANDEJUDGE