In a judgment delivered in Malindi, Justice Mugure Thande, however, suspended the implementation of the ruling until after the 2027 General Election.
The judge declared that holding the next presidential election on any date other than the second Tuesday of August 2026 would violate several provisions of the Constitution.
She cited Articles 2, 3, 10, 136(1), 136(2)(a), 142(1), 249, 259(1) and 259(5)(c) of the Constitution.
Justice Thande further declared that an election held on any other date would consequently be null and void.
“It is quite evident that the date set by the second respondent (IEBC) 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,” the ruling read in part.
The judgment also addressed the constitutional question surrounding the length of the President’s term.
Justice Thande declared that, by operation of Article 136(2)(a) of the Constitution, the term of office of the President is not five years.
She further held that neither Article 142 nor any other provision of the Constitution confers upon the President a five-year term in office.
However, the judge suspended the declaration of invalidity until after the next General Election to allow the IEBC an opportunity to correct the identified constitutional defect.
The court dismissed all other prayers in the petition that were not specifically granted.
Justice Thande also ordered that there would be no order as to costs, meaning each party would bear its own costs.
The judgment comes against the backdrop of a constitutional dispute over the computation of the presidential election cycle and the date on which the next General Election should be held.
