The High Court in Nairobi is set to rule on February 25 on a petition challenging the failure by the Independent Electoral and Boundaries Commission (IEBC) to undertake the constitutionally mandated review of constituency and ward boundaries ahead of the 2027 General Election.
The petition was filed by lawyer Philip Kipkemoi Langat through his counsel, Felix Keaton.
Langat argues that the IEBC violated Article 89 of the Constitution by failing to conduct a fresh delimitation exercise within the prescribed eight- to 12-year period.
He maintains that the last boundary review was gazetted on March 6, 2012, through Legal Notice No. 14 of 2012, meaning the next review should have been undertaken between March 6, 2020, and March 6, 2024.
Langat contends that no review was commenced or completed during that period and has asked the court to intervene over what he describes as the IEBC’s continuing constitutional obligation.
The Attorney General, the Law Society of Kenya and Katiba Institute are named as interested parties in the case.
In submissions filed on September 15, Katiba Institute agreed with Langat that the review of constituency and ward boundaries under Article 89 is a mandatory constitutional duty.
However, the institute opposed the broader remedies sought by the petitioner, particularly any order that would prevent the IEBC from conducting elections before the review is completed.
Katiba Institute argues that although the constitutional deadline for the review has lapsed, existing constituencies and wards remain in force until they are lawfully reviewed and new boundaries are brought into effect.
It has asked the court to declare that the IEBC failed to comply with Article 89, but reject any attempt to suspend elections or declare future elections invalid because of the delayed review.
Instead, the institute wants the court to direct the IEBC to publish a public compliance roadmap outlining the steps and timelines for conducting the delimitation exercise and to report back on its progress.
A key issue before the court is whether the delayed boundary review should affect the August 10, 2027, General Election.
Katiba Institute argues that Article 89 requires a boundary review to be completed at least 12 months before a parliamentary general election for the new boundaries to apply to that election.
The institute therefore submits that the deadline for completing a review applicable to the 2027 election expired on August 10, 2026.
On that basis, it argues that any review undertaken after that date could not lawfully take effect during the 2027 General Election.
The IEBC has acknowledged that the boundary review timeline has lapsed, citing factors including vacancies in the commission, litigation surrounding the 2019 census data and other legal and institutional challenges.
The commission has also indicated that the delimitation process cannot be completed in time to apply to the 2027 election because of the constitutional requirement that the exercise be completed at least 12 months before a general election.
Langat, however, maintains that the expiry of the constitutional timeline does not extinguish the IEBC’s obligation to conduct the review.
Through his lawyer, he argues that constitutional duties cannot disappear simply because the deadline for performing them has passed.
He has urged the court to interpret the Constitution in a manner that promotes accountability and compels the IEBC to fulfil its mandate under Article 89.
Katiba Institute has asked the court to avoid what it describes as two extremes: dismissing the petition without addressing the alleged constitutional violation, or halting elections and disrupting the electoral cycle.
The institute is instead seeking declaratory and supervisory orders affirming that delimitation is a mandatory constitutional duty, declaring the failure to complete the review within the prescribed period inconsistent with Article 89, and directing the IEBC to prepare and publish a public compliance roadmap.
It also wants the commission to periodically report to the court on the steps taken towards completing the review, with the court retaining supervisory jurisdiction over the implementation of its orders.
The court’s decision is expected to clarify the legal implications of the delayed boundary review and whether any future delimitation exercise can affect the 2027 General Election.
