Lawmark Partners LLP

The Constitution of Kenya, 2010 provides for the election of various public officials in a general election held on the second Tuesday of August in every fifth year. The date this year is 8 August 2017. The officials subject to the general election are: the President (and running mate – Deputy President) (Art 136), Governors (Article 180), Members of Parliament (MPs & Senators – Art 101) and Members of County Assemblies (Article 177). The election shall be conducted by the Independent Electoral and Boundaries Commission (IEBC), which is the constitutionally mandated election management body. Voters are encouraged to check their registration status on the IEBC website.

Declaration of Results

Article 138 (10) provides that the results of the presidential election must be announced within seven days after the presidential election by the IEBC.

Postponement of Presidential Elections

The Constitution does not envisage the postponement of an entire general election though under Article 102, Parliament can extend its term for a maximum of 12 months in a time of war. The presidential election can however be postponed under various circumstances as follows:

Article 138 (8) and (9) provide for postponement of the presidential elections for a maximum of 60 days should a candidate for president or deputy president die before the elections or should the winning candidate die before being declared the winner.

Article 139 provides that should the winning candidate be declared the winner (i.e. becomes declared President Elect), and dies before assuming office, the deputy president shall be sworn in as acting president and fresh elections are to be held within 60 days after the death of the President-elect and should the Deputy President-elect die before assuming office, elections shall be held within 60 days of the second death.

In light of the foregoing provisions of the Constitution and assuming that there is no unfortunate event of death of a presidential candidate, or the death of any candidate in the forthcoming elections; the maximum timelines for the swearing in of the President-elect are as follows:

Outright win by a Candidate

Under Article 141, the President-elect is to be sworn in on the first Tuesday following:

(a)    the fourteenth day after the date of the declaration of the result of the presidential election, if there is no petition filed to challenge the results; or

(b)   the seventh day following the date on which the court renders a decision declaring the election to be valid, if a petition has been filed.

In the event that there is no run-off and the Presidential results are not challenged, then the timeline shall be as below:

Election Petition

The constitution provides for the challenging of the results of presidential election results under Article 140. This is to be done (by filing a petition with the Supreme Court) within 7 days of the declaration of the results of the presidential election. The Supreme Court is to hear and determine such a Petition within 14 days of its filing of the Petition.

Should the election be invalidated, a fresh election is to be held within 60 days after this determination.

In case of a Presidential Petition that is not successful:

In case of a Presidential Petition that is successful:

Run Offs

Under Article 138 (4), the presidential candidate who garners the highest number of votes and surpasses the threshold of receiving more than 50% of the total votes cast, and at least 25% of the votes cast in at least 24 counties shall be declared the winner.

If no candidate meets this threshold, then a fresh election shall be held within thirty days after the previous election and in that fresh election with the top two candidates participating or more than two if the there is a tie of more than two on number 1 in the first round. The candidate who garners the most votes in the fresh election shall be declared as President.

In case of a run off: