The Honourable Attorney General & 1 other v Andrew Kiplimo Sang Muge & 2 others

The Court applied the harmonious interpretation rule: constitutional provisions must sustain, not destroy, each other. The reduction of the MCA term by about 8 months was occasioned by transitional events (post-2007 election violence, delayed dissolution of Parliament and section 9 of the Sixth Schedule) for which no one could be blamed. A construction producing an absurd or impracticable result, and adverse to public interest, must be avoided. The fixed election date reflects the constitution-making history and purpose of electoral certainty.

Drawing on foreign authority (South African, American, Philippines) and its own decision in Justice Kalpana H. Rawal, the Court held that security of tenure only means removal must be for cause with due process. Under Article 194 an MCA may vacate office before expiry of term, so the term cannot be a compensable property right. Awarding damages for unserved terms would burden the taxpayer with astronomical sums and produce a nugatory public expenditure.

The Court adopted the rule in Article 259(5)(c) that a period expressed in years ends at the beginning of the date of the relevant year corresponding to the start date. The learned Judge referred to Article 259(5) but failed to apply it accurately. The formula was historically justified by the clamour to remove the President's power to fix election dates, as documented in the CKRC Report and Hansard records.