The Independent Electoral and Boundaries Commission (IEBC) could face fresh court directions over its failure to complete a long-overdue review of constituency and ward boundaries, with the High Court set to rule on the matter on February 25, 2027.
The case has also put the spotlight on whether any boundary changes arising from a delayed review could be introduced in time for the August 10, 2027 General Election.
Philip Kipkemoi Langat filed the petition through lawyer Felix Keaton, arguing that IEBC has failed to fulfil its constitutional responsibility under Article 89 to periodically review electoral boundaries.
Langat says the most recent review was gazetted on March 6, 2012, through Legal Notice No. 14 of 2012.
He argues that this placed the next review within the period running from March 6, 2020 to March 6, 2024, but the exercise was not undertaken.
According to Langat, the fact that the prescribed period has passed does not bring IEBC's constitutional obligation to an end.
“The constitutional duty does not disappear merely because the period within which it ought to have been performed has expired,” Langat argues.
The petition has therefore asked the court to address both IEBC's failure to undertake the review and the legal consequences of the delay as the country approaches the 2027 elections.
One of the key questions before the court is whether IEBC can conduct the overdue exercise before the August 10, 2027 polls and, if it does, whether the resulting boundaries could legally be used during the election.
The Attorney General, Law Society of Kenya (LSK) and Katiba Institute are parties in the proceedings.
Katiba Institute agrees that boundary delimitation is a mandatory constitutional function of IEBC but has opposed orders that could affect the conduct of the 2027 elections.
In submissions filed on September 15, the Institute maintained that the existing constituencies and wards continue to have legal effect until a fresh review is completed and new boundaries are lawfully put in place.
It wants the court to declare that IEBC breached its obligation under Article 89 but reject any move to suspend the elections or invalidate them because the boundary review was not completed on time.
The Institute's argument is based on the constitutional requirement that a boundary review must be completed at least 12 months before a parliamentary general election for the new boundaries to apply to that election.
It says the deadline for a review whose results could be used in the 2027 General Election therefore expired on August 10, 2026.
“Any review undertaken after that date could not lawfully take effect for the 2027 General Election,” the Institute submitted.
Instead, Katiba Institute has asked the court to require IEBC to prepare and publish a roadmap for conducting the overdue exercise.
The roadmap would set out how and when the commission intends to undertake the review.
The Institute has further asked the court to retain supervisory jurisdiction over the process and require IEBC to give periodic reports on its progress.
IEBC has acknowledged that it did not meet the constitutional deadline for the exercise.
The commission has cited vacancies within its membership, court proceedings relating to the 2019 census data and other legal and institutional challenges as factors that contributed to the delay.
Langat is nevertheless seeking orders requiring IEBC to proceed with its constitutional responsibility despite the missed deadline.
The High Court will determine whether to grant declaratory and supervisory orders over the delayed boundary review and whether the failure to complete the exercise within the required period has any legal effect on the 2027 General Election.