Supreme Court Sets Stage for Landmark 2027 Ruling

The Supreme Court has set the stage for a landmark constitutional determination that could influence the political future of several high-profile leaders, including former Deputy President Rigathi Gachagua, after directing Attorney-General Dorcas Oduor to advise on whether impeached State officers can contest elections while their court appeals remain unresolved.

In a ruling delivered last Friday, the apex court ordered the Attorney-General to provide an advisory opinion within 21 days before it proceeds with hearing a constitutional reference seeking clarity on the eligibility of impeached public officials to vie for elective office.

The decision delays what could become one of the most consequential constitutional rulings ahead of the 2027 General Election, with the outcome expected to shape the interpretation of leadership and integrity provisions under the Constitution.

Follow Kenya Frontline X account for more updates

Constitutional Question at the Centre

At the heart of the dispute is a critical legal question: can leaders removed from office through impeachment seek elective positions before courts finally determine the legality of their removal?

Former Deputy President Rigathi Gachagua, one of the country’s most prominent opposition figures and a potential presidential contender in 2027, is among those whose political future could be affected by the Supreme Court’s eventual interpretation. Gachagua was impeached by the National Assembly in 2024 and has since maintained a legal challenge against his removal, with the matter still pending before the Court of Appeal.

Former Meru Governor Kawira Mwangaza and former Nairobi Governor Mike Sonko also have ongoing legal battles arising from their respective impeachments. Despite their removals from office, all three remain politically active and have established their own political parties.

The constitutional reference before the Supreme Court was filed in April 2026 by Meru County Assembly Speaker Ayub Bundi Solomon, who is seeking an authoritative interpretation of Chapter Six of the Constitution alongside Articles 99 and 193, which govern qualifications and disqualifications for elective office.

“This is a non-adversarial reference for an advisory opinion. The reference arises from the unresolved uncertainty at the heart of the leadership and integrity framework under Chapter 6 of the Constitution,” he says.

Bundi argues that the lack of a definitive constitutional interpretation has created uncertainty within Kenya’s governance framework, particularly where impeached leaders obtain court orders suspending the implementation of their removal while pursuing appeals.

According to his application dated April 10, 2026, this legal gap has allowed officials removed through impeachment proceedings to remain eligible for elections as litigation continues, raising broader constitutional concerns over leadership and integrity standards.

He further contends that despite the Constitution having been in force for more than 15 years, no court has conclusively settled whether impeachment automatically disqualifies a leader from seeking elective office before all appeals are exhausted.

“there remains no authoritative interpretation whether the Constitution establishes a coherent fit-and-proper standard for public leadership and especially how the standard applies to persons removed from office for breach of Chapter 6 through constitutionally prescribed processes such as impeachment.”

Why the Court Wants the AG’s Advice First

Bundi argues that the absence of legal clarity has encouraged conflicting interpretations among courts and constitutional commissions while exposing the country’s electoral process to recurring disputes whenever impeached leaders seek fresh mandates from voters.

Rather than immediately determining the constitutional questions raised, the five-judge bench led by Deputy Chief Justice Philomena Mwilu directed that the Attorney-General first provide legal advice, saying the law requires that step before such an advisory reference proceeds.

The bench, which also comprised Justices Smokin Wanjala, Isaac Lenaola, William Ouko and Mohamed Warsame, directed that both the application and its ruling be served upon the Attorney-General before the matter returns to court.

“The applicant is directed to seek the Hon. Attorney General’s advice, and such advice is to be given within 21 days from the date of this ruling.”

The judges noted that the Attorney-General’s advice could potentially resolve the constitutional issues without requiring a full hearing before the Supreme Court, thereby conserving judicial resources.

“Rule 53 of the Supreme Court Rules 2020, together with the list of authorities cited by the applicant, clearly set out the requirement to seek the Attorney General’s advice before filing a Reference,” the court said.

The court further observed that obtaining the Attorney-General’s legal opinion is not merely procedural but forms part of the constitutional framework governing advisory opinions.

“may resolve the question before us to the applicant’s satisfaction, thus saving precious judicial time.”

The judges also dismissed Bundi’s reliance on an earlier Supreme Court advisory opinion involving Martha Karua, explaining that the circumstances were fundamentally different because, in that case, the Attorney-General had been the applicant and therefore could not reasonably advise itself.

“We therefore find no justification for the applicant’s failure to seek the Attorney General’s advice in this case and his reliance on the Martha Karua case is obviously misguided.”

The bench equally rejected arguments that Kenya’s devolved system of government prevented the Attorney-General from advising on matters touching county governments.

“The devolution system as presently designed does not also preclude the Attorney General from giving advice, particularly in a matter of public interest.”

The ruling also postponed applications by the Independent Electoral and Boundaries Commission (IEBC) and the Ethics and Anti-Corruption Commission (EACC), both of which had sought to participate in the proceedings owing to their constitutional responsibilities relating to candidate eligibility and integrity requirements.

Although the Supreme Court declined to pronounce itself on whether impeached leaders can contest elections while their appeals remain pending, its eventual determination is expected to provide long-awaited legal certainty on one of Kenya’s most contested constitutional questions.