High Court Dismisses Case Seeking Postponement of Elections

The High Court has declined to postpone the August 9 General Election, stating that the date is constitutional.

General Elections should be held concurrently, according to Justice Anthony Mrima, and this is non-negotiable.

“It can be discerned that the petitioner is calling upon the court to adjust the date of the General Election. It is untenable attempt. Supremacy of the Constitution is not subject to change by any court. The Constitution cannot subvert itself,” said Justice Mrima. 

The judge premised his decision on Article 136(2)(a) of the Constitution, which provides that “an election of the President shall be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.”

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The 67-page suit was filed by former nominated Senator Paul Njoroge.

He claimed that when the date for the next General Election was set, the Independent Electoral and Boundaries Commission (IEBC) was not properly constituted.

“The intended presidential election of 9th August is imposed on the people of Kenya through an administrative fiat of the IEBC and therefore illegal, irregular and illegitimate,” Njoroge said.

According to Njoroge, the term of office “is supposed to run for a period of five years unless such period is and be interrupted within the term by only limited clear laid down grounds including mental or physical incapacity to perform the constitutional functions of the respective offices or vacancy arising either from death, resignation of the office bearers or any other reason contemplated within the Constitution.”

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The court dismissed this argument since the commision now has a CEO.

He further claimed that because the last elections were held on October 26, 2017, President Uhuru Kenyatta and DP William Ruto’s terms will expire in November.

The Constitution, on the other hand, mandates that every fifth year, a General Election be held on the second Tuesday in August.

Justice Mrima said a Presidential petition cannot alter the five-term of office.

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“The computation of time starts at the beginning of the election cycle which is the second Tuesday in August, in every fifth year. This means that each election cycle begins and ends on second Tuesday in August in every fifth year,” said the judge. 

“Any incident in the intervening period including a Presidential petition that delays the swearing-in of the President-elect cannot adjust the dates. All elections are held on the same day and the date cannot be varied,” he stated.

The judge went on to say that the petition was an affront to the Constitution’s sacredness.

He further advised the petitioner that part of the constitutional amendments included establishing a permanent and predictable election date in the Constitution (2010).