Lawyer asks court to stop 2027 elections over delayed IEBC boundary review

A city lawyer has asked the High Court to stop next year’s General Election until the IEBC completes the overdue review of the country’s constituency and ward boundaries.

Advocate Philip Kipkemoi Langat wants the court to restrain the IEBC from conducting or supervising elections to any elective body or office until it reviews the number, names and boundaries of constituencies and wards as required under Article 89 of the Constitution.

“I therefore urge the court to issue an order restraining the first respondent (IEBC) from conducting or supervising any elections pending the delimitation exercise,” lawyer Langat seeks.

Langat argues that the Commission violated the Constitution by failing to undertake the boundary review within the prescribed eight-to-12-year period, with the last delimitation exercise having been gazetted in March 2012

He contends that the next review should have been undertaken between March 6, 2020 and March 6, 2024, but no such exercise was completed within the constitutional window.

The petitioner has also asked the court to determine whether elections held before the review of constituency and ward boundaries would be constitutionally valid and whether the failure to conduct the exercise amounts to a constitutional crisis under Article 89.

“The Constitution is very clear on the requirement for review of the boundaries of constituencies and wards, and this exercise cannot be ignored," Langat says in his court papers. 

Langat further contends that the absence of commissioners can no longer be used to explain the delay, arguing that even after the new team was installed in July last year, the IEBC has to date failed to commence the overdue boundary review. 

“The delimitation exercise is constitutional. It has to be carried out based on what the Constitution says, within a certain limit. That limit has been exceeded, as you are aware. Delimitation ought to have been carried out a long time ago,” Langat said.

He further argues that the constitutional window for a boundary review that could take effect in the 2027 General Election has already closed.

“It's either they come out and tell us why that exercise has not been carried out, and if it's not carried out, we are asking the court to stop the elections,” Langat says.

The petition has, however, received partial backing from Katiba Institute, which agrees with advocate Langat that the boundary review is a mandatory constitutional obligation and that the prescribed timeline has lapsed.

But Katiba, which is enjoined in the case as the second interested party, has opposed his bid to stop next year’s elections.

In submissions filed before the High Court, the lobby group urged the court to declare that the IEBC’s failure to complete the delimitation exercise within the prescribed period was inconsistent with Article 89, while rejecting orders that would suspend elections.

“We respectfully urge the court to declare that delimitation is mandatory, that the lapse of the prescribed constitutional timeline is inconsistent with the Constitution, but that such lapse does not by itself invalidate existing electoral units or suspend elections otherwise required by the Constitution,” Katiba submitted.

Katiba argues that the Constitution requires a boundary review to be completed at least 12 months before a General Election for new boundaries to take effect.

With the IEBC having set August 10, 2027 as the date of the next General Election, Katiba says the deadline for completing a compliant review for that election was August 10, 2026.

“The August 2027 election must therefore be conducted on the existing electoral units in any event, whether or not the 1st Respondent (IEBC) acts now,” Katiba states.

The lobby group warned that stopping the elections would interfere with the constitutional right of citizens to participate in elections and could undermine democratic continuity.

“An order that halted elections nationwide, or that restrained the IEBC from carrying out all electoral functions until delimitation is concluded, would impair democratic continuity and undermine representative government,” Katiba submitted.

“We therefore pray that the court be pleased to decline the prayer seeking to restrain IEBC from conducting or supervising elections and referenda pending delimitation; decline the prayer seeking anticipatory invalidation or nullification of elections on account of the present lapse of time in delimitation.” 

Instead, Katiba wants the court to compel the IEBC to account for the delay and provide a clear roadmap for completing the overdue exercise.

It has asked the court to direct the Commission to file and publish a status report and compliance roadmap setting out the steps taken and its proposed timetable for complying with Article 89.

The institute also wants the court to retain supervisory jurisdiction to receive compliance reports and issue further directions where necessary.

Katiba acknowledged that the IEBC was without commissioners for a significant period, with vacancies arising in December 2022 before the Commission was reconstituted on July 10, 2025.

It relied on a 2025 Supreme Court advisory opinion which held that delimitation is a function reserved for commissioners acting as a collegiate body.

Katiba therefore said the Commission was constitutionally incapacitated from undertaking the exercise while it was not properly constituted, but that the constitutional duty did not disappear.

“The obligation under Article 89 is continuing, and it revived upon the Commission’s reconstitution,” the institute submitted.

It argues that the issue now before the court is the IEBC’s failure to commence the review after July 10, 2025, when the Commission was reconstituted and capable of undertaking its constitutional mandate.

Katiba has also rejected reliance on litigation surrounding the 2019 census data as a nationwide impediment to the delimitation exercise.

It argues that litigation concerning population data in particular localities cannot be elevated into a nationwide excuse for failing to discharge the constitutional obligation.

The institute warned that accepting such an argument would effectively allow boundary delimitation to be delayed indefinitely whenever census data is challenged.

The High Court is scheduled to deliver its judgment on Langat's petition on February 25, 2027.