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; and
(xii) 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; and
(iv) 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. stated
Those 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 compl
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(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; and
(xii) 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; and
(iv) 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. stated
Those 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 compl
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