By Eric Kihungu- Managing Partner
The Independent Electoral and Boundaries Commission (IEBC) currently schedules the next Kenyan general election for August 2027, five years after the last polls held on August 9, 2022. However, on April 25, 2025, three citizens—Dr. Owiso Owiso, Khelef Khalifa, and Ashioya Biko—filed a petition at the Supreme Court arguing that the Constitution actually mandates elections in August 2026, not 2027 . This challenge has ignited a nationwide debate over how to interpret key constitutional provisions on election timing.
Constitutional Text vs. Conventional Wisdom
Article 136(2)(a) of the 2010 Constitution provides:
- “An election for the President shall be held on the second Tuesday in August in every fifth year.”
- Article 259(5)(c) governs computation of periods expressed in years, stating such periods end at the beginning of the date in the relevant year corresponding to the original date.
- Traditionally, Kenyans and IEBC alike have understood “every fifth year” to mean five full years after the previous election—hence August 2027. The petitioners, however, insist that “in the fifth year” must be taken literally: the fifth calendar-year period beginning on August 9, 2026, and ending August 8, 2027 .
The Petitioners’ Timeline Breakdown
According to the court filings:
Year 1: Aug 9, 2022 – Aug 9, 2023
Year 2: Aug 9, 2023 – Aug 9, 2024
Year 3: Aug 9, 2024 – Aug 9, 2025
Year 4: Aug 9, 2025 – Aug 9, 2026
Year 5: Aug 9, 2026 – Aug 9, 2027
They argue that the “second Tuesday in August in the fifth year” therefore falls on August 11, 2026, not 2027 .
Willis Otieno’s Constitutional “Calculation”
- Prominent constitutional lawyer Willis Otieno has popularized this literal approach on social media, calling the five-year-term interpretation a “political fiction.” He emphasizes that:
- “The phrase ‘in the fifth year’ is a legal constraint, not an algebraic puzzle… Why would the Constitution fix the election date if the intention was to let each president serve five full years?”
- Otieno’s breakdown has prompted Kenyans to revisit long-held assumptions, sparking thousands of online comments debating whether predictability in the electoral calendar should trump completion of a full five-year presidential term .
Counterarguments from Legal Experts
- Many constitutional scholars reject Otieno’s reading:Lawyer Mwaura Muroki notes that a “year” under Article 259 must be calculated as 365 days, thus five such annual periods from August 2022 land squarely in August 2027 .
- Governance expert Javas Bigambo insists the Supreme Court should clarify whether “year” refers to a calendar year or an electoral cycle—citing the 2018 Omtatah v. AG & IEBC case, where the Court applied Article 259(5)(c) to affirm that the 2017 election fell in the fifth year from March 2013 .
- Both experts advocate for an advisory opinion or declaratory judgment from the Supreme Court to resolve the ambiguity.
The Supreme Court Petition
Before the Supreme Court, the petitioners seek:
- A declaration that under Article 136(2)(a), the next presidential election must be held on August 11, 2026.
- A finding that scheduling polls in August 2027 would violate the Constitution and Articles 38(2)–(3) (rights to regular elections) and 142(1) (term-end/swearing-in) .
- An order compelling IEBC to commence preparations for the August 2026 election cycle.
- They invoke Section 3A of the Supreme Court Act (inherent powers) and Parts II–III of the Elections Act, 2011 (timelines and procedures).
Implications for Electoral Administration
Should the Court side with the petitioners:
IEBC would need to accelerate delimitation, voter registration, procurement, and logistics for a 2026 poll—potentially straining resources earmarked for 2027.
Political parties and candidates would have one year, not two, to organize campaigns, fundraising, and compliance under the Elections Act.
Voters would gain earlier recourse to exercise Article 38 rights, but risk confusion if administrative bodies and budgets remain aligned to a 2027 cycle .
Certainty of election dates is vital for credible, inclusive elections; yet abrupt change may disrupt budgeting, parliamentary calendar, and devolved-government planning.
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