When the Mountain Labours: Reading the Fine Print of Owiso v Attorney General & IEBC
MLR Case Note
Horace once warned the Pisos, in his letter on the craft of poetry, against openings too grand for their endings. Parturient montes, nascetur ridiculus mus, he wrote: the mountains will labour, and what is born is a ridiculous mouse. He meant it for poets who promise an epic and hand over an anecdote instead. I think it also describes, by pure accident, what a suspended declaration of unconstitutionality does to a litigant who has just watched a court agree with him on everything he asked for. The mountain groans magnificently. What crawls out is small, apologetic, and entirely unable to change anyone’s plans for August 2027.
On 7th August 2026, Lady Justice M. Thande of the Malindi High Court delivered judgment in Dr Owiso Owiso, Khelef Khalifa & Ashioya Biko v Attorney General & Independent Electoral and Boundaries Commission, HCCHRPET/E023/2025, and I suspect it will be remembered less for what it declared than for what it declined to enforce. Reading Article 136(2)(a) of the Constitution together with the time computation rule at Article 259(5)(c), the Court held that the next presidential election falls due on 11th August 2026, not 10th August 2027, the date IEBC has all along been preparing for. It went further and held that Article 142, which fixes the President’s term as running from the date of swearing in until the successor is sworn in, guarantees no five-year term at all. These are not modest findings. Taken at face value, they rewrite the electoral calendar and shorten the sitting President’s tenure, on paper, three days before the very deadline the Court has just fixed. And then, in the same breath, the Court suspended the consequences of its own holding until after the election it has just declared unlawful has been held, on the very date it has just declared unlawful. The mountain laboured. The mouse walked out, congratulating everyone on being right.
Prospective overruling, properly understood
Before I get to what Thande J. did with this doctrine, it is worth pausing on what the principle is, because a lot of the public commentary you will see on this judgment will analyse a suspended declaration as a synonym for judicial cowardice. It is not that. It is a specific, imported doctrine with its own conditions of use, and those conditions matter.
The idea that a court can find a law or an act unconstitutional and still refuse to give that finding retrospective effect did not start in Kenya. Constitutionalists call this prospective overruling (ex nunc), now dubbed “sunbursting”. Its clearest statement in American law comes from Justice Cardozo’s opinion in Great Northern Railway Co v Sunburst Oil and Refining Co, 287 US 358 (1932), where the United States Supreme Court held that a state court could give a new rule of law prospective effect only, without offending the federal Constitution. The doctrine travelled into Commonwealth constitutional law most influentially through the Indian Supreme Court’s decision in I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643, where Chief Justice Subba Rao used it, drawing on Articles 13 and 368 of the Indian Constitution, to spare constitutional amendments Indians had already relied upon from being unwound by a fresh ruling on Parliament’s amending power. What I think gets lost when people cite Golak Nath as a general licence is that the Indian Supreme Court did not embrace prospective overruling as a discretion any court could reach for. It confined the doctrine, in that same judgment, to constitutional matters and to exercise by the apex court alone. That limitation matters for reasons I come back to.
Kenyan courts had already adopted a version of this doctrine long before Owiso, so Thande J. was right that she was following settled practice rather than inventing something. The High Court used the doctrine to give Parliament twelve months to cure the first Constituencies Development Fund Act, 2013 before it stood invalidated, a suspension the Court of Appeal upheld in National Assembly of Kenya & another v Institute for Social Accountability & 8 others, Civil Appeal 92 and 97 of 2015 (Consolidated), [2017] KECA 170 (KLR). It used the doctrine again in 2024 against the Social Health Insurance Act, the Digital Health Act and the Primary Health Care Act, suspending nullification for 120 days so Parliament could redo public participation under Article 118 and Article 10 of the Constitution, in Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties), Constitutional Petition E473 of 2023, [2024] KEHC 8255 (KLR), 12th July 2024. The same was true for Gikonyo & another v National Assembly of Kenya & 4 others; Council of Governors & 3 others (Interested Parties), Constitutional Petition 178 of 2016, [2024] KEHC 10886 (KLR), where the Constitutional bench ordered CDF programmes to cease at the stroke of midnight on 30th June 2026. None of this, in other words, is new ground. What I have not seen anyone else notice, and what I think is the real story here, is that the third entry in that Kenyan case lineage has Thande J.’s own name on it.
Thande J.’s history
On 20th September 2024, sitting with Kimondo and Aburili JJ., Thande J. declared the National Government Constituencies Development Fund Act, 2015 unconstitutional for breach of the devolution principles in Article 6 and the separation of functions between national and county government under the Fourth Schedule, and suspended that declaration too, fixing the Fund’s programmes to cease at the stroke of midnight on 30th June 2026, in the Gikonyo case. That judgment was overturned on appeal on 6th February 2026 and now sits before the Supreme Court on notice of appeal, which is a different story for a different issue. What I want to draw out here is the contrast in craftsmanship between the two suspensions she has now written. In Gikonyo, the suspension carried a fixed date. Parliament knew exactly when the clock ran out. In Owiso, the suspension carries no date at all. It runs until after the next general election is held, and left to IEBC’s own preparations, that means the declaration of invalidity only bites once the very election it condemns has already happened and a new government already sworn in under Article 141. A suspended declaration with no defined timeline, I would argue, is not really suspended. It is buried.
I want to be careful here rather than overreach. One secondary account of the deliberations in Gikonyo suggests Thande J. actually pushed for a shorter compliance window than her two co-panellists settled on. I confirmed that against the primary judgment text at paragraph 196. This secondary account by Dr Gautam Bhatia holds up, making the contrast sharper still: the same judge who once argued for tighter discipline is now handing down the most open-ended suspension in the whole Kenyan lineage, in the highest-stakes matter she has yet had before her.
A doctrine the Supreme Court has just begun to walk back
The bigger problem, to my mind, is not internal inconsistency but timing against a completely different bench. In a judgment delivered on 31st March 2026, the Supreme Court finally decided the long running fight over Parliament’s failure to legislate local tribunals into the Judiciary under Article 169(2), a dispute Okiya Omtatah first brought in 2018 in Okiya Omtatah Okoiti v Judicial Service Commission & 2 others; Katiba Institute (Interested Party), Petition 197 of 2018, [2021] KEHC 461 (KLR), 11th March 2021 (Mrima J.). The High Court had ordered the Attorney General and Parliament to report back to it within six months on legislative progress, invoking the right of access to justice under Article 48 as the underlying harm. The Court of Appeal upheld that structural interdict. The Supreme Court did not. It agreed Parliament’s Article 169(2) obligation was real and that the delay breached Articles 48 and 169(2). Still, it held that ordering Parliament to report back on its own legislative process cut too deeply into the separation of powers under Article 1 and Article 94, and that a bare declaration was remedy enough.
A guest commentary on the Constitutional Law and Philosophy blog by Kenson Mutethia made this connection within days, and I think the point deserves a wider audience than a blog comment section usually gets. If the Supreme Court will not let a lower court impose a reporting timeline on a coordinate branch in aid of a declared breach, the author asks, what gives any court the standing to impose a suspension timeline, which is the same concern under Aura, under Gikonyo, and now under Owiso. The commentary reads this as sitting in real tension with the Supreme Court’s own earlier tolerance of suspended declarations in the Finance Act, 2023 litigation. Thande J. does not cite the Tribunals Transition case anywhere in Owiso. Four months after the apex court started chipping at the foundations of exactly this remedy, she built straight on top of it as though the ground underneath had not moved at all.
Correcting the Court of Appeal from below
There is a further difficulty in the judgment that nobody else appears to have picked up, and it worries me more than the suspension does, because it touches the hierarchy of the courts rather than the wisdom of a remedy.
Tucked into her reasoning on the computation of time, Thande J. observes that the Court of Appeal, in Attorney General & another v Andrew Kiplimo Sang Muge & others [2024] KECA 1032 (KLR), appears to have miscounted its own dates when applying Article 136(2)(a) read with Article 259(5)(c). The Court of Appeal there found that the fifth year after the 2013 election ran to 8th August 2022, and that the next general election therefore fell on that date. Thande J. points out, and I have checked this against a calendar myself, that the second Tuesday of August in that fifth year was in fact 9 August, not 8 August. She does not say she is overruling Sang Muge. What she says, in effect, is that she is applying the very formula the Court of Appeal set down, only doing it more carefully than the Court of Appeal itself managed.
I think this is the kind of move a High Court has no business making, however sound the arithmetic behind it. Article 163(7) of the Constitution binds every court other than the Supreme Court to that Court’s decisions, and the wider doctrine of precedent that sits under it, as Kenya Law’s own guidance sets out plainly, binds the High Court to the Court of Appeal in the same way. The older authority for that proposition is Dodhia v National & Grindlays Bank Ltd [1970] EA 195, decided under the old East African Court of Appeal and still cited as the foundation of Kenya’s vertical stare decisis. What that discipline looks like in practice is worth spelling out, and Ibrahim J.’s own conduct as a High Court judge gives a good example, in the dispute that eventually became National Bank of Kenya Limited v Anaj Warehousing Limited, Petition 36 of 2014, [2015] KESC 4 (KLR), handed down on 2nd December 2015. Bound by the Court of Appeal’s earlier holding in National Bank of Kenya Ltd v Wilson Ndolo Ayah on section 34(1) of the Advocates Act and the validity of documents prepared by an advocate without a practising certificate, Ibrahim J. applied that precedent and declared the charge before him void, whatever reservations he may privately have carried about it. It took a differently constituted Supreme Court, years later, to revisit and eventually reverse that line of authority. That, to my mind, is what fidelity to precedent looks like when a lower court disagrees with an appellate finding. You apply the finding and leave the correcting to the court with the constitutional standing to do the correcting.
Thande J. never says she is defying Sang Muge. But by publicly correcting what she takes to be an arithmetic slip in a binding Court of Appeal precedent, while presenting her own working as the more careful application of that same precedent’s formula, she comes close to marking the Court of Appeal’s homework from a rank below it. I would argue the proper channel for that critique, however correct it may turn out to be on the mathematics, runs through a review to the Court of Appeal or an appeal to the Supreme Court under Article 163, not through obiter remarks at first instance. There is a second irony worth naming here, and it ties back to the earlier discussion of Golak Nath. If prospective overruling was designed, in its most disciplined form, as a power reserved for the highest court in a system because only that court can unsettle a precedent without creating chaos underneath it, then a High Court judgment that both deploys prospective overruling and quietly corrects the Court of Appeal’s sums is reaching, in the same breath, for two instruments comparative doctrine has historically kept several ranks above where this judgment sits.
The case that did not survive Nairobi, misdescribed
There is a smaller inaccuracy worth highlighting too, because it touches how carefully the Court handled its own procedural history rather than the merits. Thande J. records at paragraph 9 that the same petition, filed earlier at the Supreme Court as Petition No. E020 of 2025, was withdrawn after a preliminary objection on jurisdiction was raised. I do not think that is quite what happened. The Supreme Court’s ruling of 15 August 2025, a full bench of seven with Koome CJ presiding, in Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 8 others (Interested Parties), Petition (Application) E020 of 2025, [2025] KESC 52 (KLR) (Civ), struck the application out for want of jurisdiction. Nobody withdrew anything. Nor did the ruling ultimately turn, as one might expect from the way Owiso describes it, on the petitioners’ standing to seek an advisory opinion under Article 163(6). The Attorney General raised that argument in his preliminary objection, but the Supreme Court never had to reach it. It disposed of the matter on two narrower grounds instead: first, that filing a petition and simultaneously asking leave to file the very same petition already on the record was, in the Court’s own word, absurd, and second, that the Supreme Court’s exclusive original jurisdiction under Article 163(3)(a) read with Article 140 only switches on once a president elect has been declared, and cannot be used to pin down an election date in advance. A judgment this attentive to text elsewhere ought to have handled its own litigation history with the same care.
Coast, but not quite the coast one would expect
The question of venue deserves a narrower answer than forum shopping highlighted at the judgement’s paragraph 9, because the record supports something more specific than that. Of the three petitioners, Khelef Khalifa has by far the clearest footprint at the Coast. He has directed Muslims for Human Rights, a Mombasa-based organisation, for decades, and has litigated coastal grievances throughout that period, from police conduct to the Mama Ngina Waterfront to land disputes in Lamu. That gives the petition team a genuine territorial link to the region, and this was not three Nairobi lawyers renting a coastal postcode for the weekend. But Khalifa’s own prior litigation, so far as I can trace it, runs through the Mombasa High Court, not Malindi, under the High Court’s original jurisdiction over constitutional matters at Article 165(3)(d). If the choice of registry was tactical, I would guess the more honest reading is not Coast versus Nairobi at all, but something narrower, a bench-specific calculation aimed at the one sitting Malindi judge with a recent and public record of comfort issuing declarations of unconstitutionality in exactly this kind of high-stakes structural dispute. That is a more serious charge than generic forum shopping, and I think, on what the record actually shows, a more defensible one to put in print. I put it as a question rather than an accusation. Nothing here establishes intent.
The mouse, again
None of this is a disagreement with the Court’s constitutional arithmetic. On Article 136(2)(a) read with Article 259(5)(c), I think Thande J. very likely has the textually correct answer, and it exposes an uncomfortable truth: IEBC has been preparing for the wrong date, and has arguably been doing so since the Court of Appeal’s own miscounted dictum in Sang Muge. My complaint is not with the destination. It is with a court that walks a litigant all the way to the courthouse steps, hands him a declaration under Article 165(3)(d) that the building is on fire, and then tells him the fire brigade will arrive sometime after the building has already burned down and a new one built in its place, using a remedy that comparative doctrine once kept in the hands of courts with the constitutional authority to make it stick, and pausing along the way to mark the Court of Appeal’s own homework. Horace’s mountain laboured for a poem. This one laboured for a mouse with no expiry date written on its lease.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.