Former National Assembly Majority Leader Aden Duale has challenged a High Court interpretation that places Kenya’s next General Election on August 11, 2026, arguing that the decision would effectively shorten the constitutional terms of elected leaders.
Mr Duale, a former long-serving lawmaker, said the judgment by Lady Justice Mugure Thande amounted to an erroneous interpretation of the Constitution by distinguishing between “fifth year” and “five years”.
The dispute arose from a constitutional petition seeking orders that the next presidential election be held in August 2026 rather than 2027.
The petitioners argued that Article 136(2)(a) of the Constitution requires a presidential election to be held on the same day as the General Election of MPs, being the second Tuesday in August “in every fifth year”.
Since the last General Election was held on August 9, 2022, they argued that the fifth year began on August 9, 2026, making Tuesday, August 11, 2026, the constitutionally prescribed election date.
The petitioners also urged the court to compel the Independent Electoral and Boundaries Commission (IEBC) to begin preparations for an election in August 2026 rather than proceed based on the widely anticipated 2027 election date.
Their argument was based on a calculation in which August 9, 2022 to August 8, 2023 constituted the first year; August 9, 2023 to August 8, 2024 the second; August 9, 2024 to August 8, 2025 the third; August 9, 2025 to August 8, 2026 the fourth; and August 9, 2026 to August 8, 2027 the fifth year.
Under that interpretation, August 11, 2026—the second Tuesday of August—would fall within the fifth year.
The court's interpretation has now put the meaning of the constitutional phrase “every fifth year” at the centre of a potentially far-reaching electoral dispute.
Mr Duale, however, says the interpretation fails to take into account other provisions of the Constitution that expressly provide for five-year terms.
He pointed to Article 177(4), which states that a county assembly is elected for a term of five years, arguing that the provision provides important context for interpreting Article 136(2)(a).
“Article 177(4) of the Constitution in relation to the election of MCAs further provided clarity that a county Assembly shall be elected for a term of five years,” Mr Duale said.
He argued that Article 136(2)(a) cannot be read in isolation because the Constitution establishes a common election date for the President, MPs, governors, senators and MCAs.
Indeed, the Supreme Court has previously dealt with the relationship between the constitutional requirement for elections to be held on the “second Tuesday in August, in every fifth year” and the separate provision giving county assemblies five-year terms.
In a 2022 judgment concerning the county assembly election cycle, the Supreme Court found that the constitutional provisions were not contradictory and that the election date was designed to ensure a predictable, common electoral cycle for all elective positions.
The Supreme Court noted that Articles 101(1), 136(2), 177(1) and 180(1) collectively provide for parliamentary, presidential, county assembly and gubernatorial elections to be held on the same day—the second Tuesday in August in every fifth year.
It further held that the Constitution was designed to remove presidential discretion over the timing of elections and provide certainty around the electoral calendar.
Mr Duale now argues that the same constitutional framework should prevent an interpretation that effectively gives elected leaders a term of only four years and two days from the August 9, 2022 election.
“To interpret that the date is next week would mean all elective positions would be vacated after exactly just four years and two days,” he said.
He warned that such an interpretation would create constitutional uncertainty by effectively terminating the tenure of the President, MPs, governors, senators and MCAs before what he considers to be the completion of their five-year terms.
The former Majority Leader also invoked Article 142, which provides that the President's term begins when the President is sworn in and ends when the person next elected President is sworn in.
He argued that the provision should be considered alongside the election-date provisions rather than using the phrase “fifth year” to produce what he considers a shortened presidential term.
Mr Duale further maintained that constitutional interpretation must consider the Constitution as a whole and take account of Kenya's constitutional history.
He said the framers of the 2010 Constitution could not have intended to establish an electoral cycle in which Kenyans vote every four years and two days.
“People of Kenya never submitted to be electing their elective leaders after every four years and two days,” he said, adding that Kenya's constitutional history and previous election cycles demonstrate that elective terms have traditionally been understood as five years.
The former lawmaker also warned that an August 2026 election would have implications beyond the presidency because the Constitution ties the election of the different elective offices to the same General Election.
His argument therefore goes beyond whether President William Ruto should remain in office until 2027. It raises a broader question of whether MPs, senators, governors and MCAs elected in 2022 would also have their terms cut short.
The controversy is particularly significant because the Supreme Court has previously recognised that the Constitution deliberately establishes a common election date for the country's elective positions. In its 2022 decision, the court said an alternative interpretation could lead to “constitutional chaos” and stressed the need for harmony and consistency among the various election provisions.
Mr Duale accused the High Court judgment of failing that test.
“Constitutional interpretation is also not to be interpreted in void,” he said, arguing that the history of Kenya's constitutional order, including the repealed Constitution and the process that produced the 2010 Constitution, should inform the interpretation of the current provisions.
He maintained that the ruling could create vacancies in elective offices and amount to removal from office before the expiry of constitutionally protected terms except through procedures expressly provided for by the Constitution.
“The judgment therefore falls flat on the face of the Constitution from all angles,” Mr Duale said.
The dispute now places the timing of the next General Election at the centre of a fresh constitutional debate, with the meaning of “fifth year” emerging as the critical question in determining whether Kenyans will go to the ballot in August 2026 or August 2027.
