Milimani Law Courts, Nairobi. (Photo: Judiciary)
The High Court has dismissed a constitutional petition seeking to permanently bar former Presidents, Deputy Presidents, Governors, and Deputy Governors from seeking elective or appointive public office after completing their constitutional terms, ruling that such a restriction has no basis in the Constitution.
In a judgment delivered by Justice Roselyne Aburili, the court held that judges cannot create new qualifications or disqualifications for public office where the Constitution is silent, warning that doing so would amount to amending the Constitution through judicial interpretation.
The petition, filed by Maxwel George Murungaro Mbugua, argued that the offices of the President and Deputy President constitute one inseparable office and that holders of those offices should be deemed permanently retired after serving the constitutional two-term limit.
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He further sought orders barring the Independent Electoral and Boundaries Commission (IEBC) from clearing such former leaders to contest any future elections. However, Justice Aburili found no constitutional or statutory foundation for the proposal.
“Courts are not at liberty to create additional restrictions where none exist. To do so would not amount to interpretation; it would amount to constitutional amendment by judicial fiat,” the judge ruled.
The court emphasised that while political rights may be limited, any such limitation must be expressly provided for in the Constitution or legislation enacted in accordance with Article 24.
Justice Aburili further held that although the tenure of Deputy Presidents and Deputy Governors ends together with that of the President or Governor, the expiry of their terms does not permanently disqualify them from public service.
“Such cessation of office does not render them constitutionally retired for all purposes, nor does it bar them from seeking any other elective or appointive office,” the judgment states.
The judge noted that the Constitution clearly outlines qualifications and disqualifications for public office and deliberately omits any provision permanently barring former holders of these offices from seeking future leadership positions.
If Kenyans wish to introduce such a restriction, she said, it can only be achieved through the constitutional amendment procedures set out under Articles 255 to 257, not through the courts.
Consequently, the court dismissed the petition for lack of merit and made no order as to costs.
