High court dismisses petition seeking to postpone August polls

The High Court has dismissed a petition to postpone the upcoming elections over claims that President Uhuru Kenyatta will not have completed his five-year term of office. 

Justice Anthony Mrima said the petition filed by former nominated Senator Paul Njoroge was an "untenable" attempt to adjust the date of the General Election (August 9, 2022), which is defined and stipulated in the Constitution. 

"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". 

He stated that the Constitution is clear and unambiguous on the date of the General Election.

The former Jubilee Party senator had argued that conducting the election on August 9, 2022 will have reduced the five-year term of President Kenyatta and his deputy William Ruto since they were sworn-in on November 28, 2017.

According to him, their five years Constitutional terms will not have lapsed by the date of the next Presidential Elections, hence their stay in office ought to be extended. 

He had told court that the constitutional term of office for President Kenyatta and DP Ruto 'arithmetically and logically' lapses on November 28, 2022. 

In his view, 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".

But Justice Mrima ruled that the date of the General Election is already stipulated in the Constitution, being the second Tuesday of the fifth year, and cannot be adjusted by any occurrence in the intervening period.

Although the President and his deputy were reelected on August 8, 2017 their victory was annulled by the Supreme Court following a petition lodged by Opposition the then opposition group, NASA coalition. They were reelected  during repeat of the polls. 

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

"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 added that the petition was an encroachment to sanctity of the Constitution. 

He further told the petitioner that fixing a permanent and predictable elections date in the Constitution (2010) was part of the constitutional reforms.

The judge also dismissed Mr Njoroge's arguments that the forthcoming polls should be postponed because at the time the electoral commission gave directions on conduct of the next General Election it was improperly constituted. 

He had alleged that the Commission lacked the quorum of its Commissioners to conduct business.

Mr Njoroge was of the belief that the ongoing preparations by the IEBC in regard to the 2022 General Election are illegal, irregular and illegitimate. 

"The intended Presidential Elections of August 9, 2022 is imposed on the people of Kenya through an administrative fiat of the Independent Electoral and Boundaries Commission (IEBC) and, therefore, illegal, irregular and illegitimate," he argued

In addition, he said the IEBC did not have a substantive Chief Executive Officer (CEO).