Malindi High Court Orders IEBC to Rectify Election Date Anomaly for Subsequent Polls

By Julius Mwabonje

Email, thecoastnewspaper@gmail.com

Malindi High Court has ordered the Independent Electoral and Boundaries Commission to rectify a defect on the election date saying the general election should held August 2026 and not the scheduled August 10, 2027 following an application filed by human rights activists.

In her judgement, Malindi Resident Lady Justice Mugure Thande declared presidential elections held beyond the first Tuesday of August, 2026 would be null and void.

“In the end and after the foregoing analysis, the court makes the following orders that 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,” she stated.

She added that, “A declaration is hereby made that the fifth year after the previous presidential election held on 9th August 2022 commences on 9th August 2026.”

She, however, declined to invalidate past general elections held against the law and allowed IEBC to rectify the anomaly in future.

“The declaration of invalidity of the election is suspended until after the next general election is held to allow the second respondent to correct the defect. Declaration is hereby made that by operation of article 136(2)(a) of the constitution, the term of office of the president is not five years. Neither article 142 nor any other provision of the constitution confers upon the president a five year term in office,” she added.

The judgement also pointed out the late filing of the petition hence the court could not grant the orders as prayed by Dr Owiso Owiso, Khelef Khalifa and Ashioya Biko verse the Attorney General and IEBC.

“As regards the order directing the 2nd respondent to hold elections of the president on the second Tuesday of August 2026, it is noted that the petition was filed late 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 and it is therefore necessary to balance the enforcement of the rule of law with judicial restraint to avoid precipitating unmitigable national stability,” she stated.

The judge also pointed out that petitioners had failed to demonstrate that IEBC had violated the constitution and rule of law arguing that IEBC was preparing for the August 2027 general election.

“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. The court takes judicial notice of the fact that the second respondent has made no preparations for the general elections on 11th August 2026. All indications ae that the 2nd respondent is preparing for election on 10th August 2027. Indeed, in his foreword to the second respondent’s Election Operation Plan 2025- 2027, its chairman Erastus Edung Ethekon stated that on 10th August, 2027 Kenya will hold the fourth general election under the constitution of Kenya 2010,” she stated.