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Court of Appeal President Justice Daniel Musinga/FILE - Judiciary Media Service


Appeal Court to hold conference on BBI appeal Wednesday

NAIROBI, Kenya May 28 – The Court of Appeal will on Wednesday hold a Case Management Conference on four appeals challenging the nullification of the Constitution of Kenya Amendment Bill under Building Bridges Initiative (BBI) by the Constitutional Court.

According to the Court of Appeal Registrar, the conference to be presided by a three-judge bench and attended by all the parties involved in the appeal cases will give directions on how the case will be prosecuted.

During the conference, the parties involved are expected to settle some of the issues in the appeal cases before the case finally proceeds to a hearing.

The judges will also determine the viability of hearing the substantive appeals, the length of the submissions to be filed, the amount of time required for the parties to prepare and exchange submissions and the logistical issues relating to the hearing of the appeals.

Once the parties in the case agree on the ground rules for the case, Court of Appeal President Justice Daniel Musinga is expected to constitute a bench that will hear the appeal cases. Two parties in the case had asked the Justice Musinga to consider setting up a bench constitution either five or seven judges.

President Uhuru Kenyatta, former Prime Minister Raila Odinga and the BBI Secretariat  filed the appeal challenging the May 13 Constitutional Court verdict that rendered that the BBI Constitutional Amendment process is unconstitutional, null and void.

In his appeal, President Kenyatta through lawyer Waweru Gatonye, the president argued that the five-judge bench erred by determining the case without ensuring personal service had been effected upon him.

He also faulted the judges for failing to determine whether he can be sued in his personal capacity and not as the President of Kenya.

“The learned judges held that Kenyatta ought to have responded to the petition either himself or by his duly appointed representatives and contested Kenyatta’s inclusion in the petition on any ground that would be available to him and not through the Attorney General,” he said, “The judges proceeded to hear and determine a matter against Kenyatta without ensuring that personal service had been effected upon him.”

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As part of his concerns, Kenyatta protested the judges’ refusal to hear him in the petition in a personal capacity and not through the Attorney General.

“President did not enter an appearance in the proceedings and neither did he file any grounds of objection to contest the proceedings on the ground of misjoinder, or any other ground for that matter,” his legal team stated.

Gakonye further objected to the judges ruling that a civil case could be instituted against the President or a person performing the functions of the president and that the entire BBI process was unconstitutional.

Justices Joel Ngugi, George Odunga, Jarius Ngaah, Chacha Mwita, and Teresiah Matheka in their ruling, declared that the basic structure of the constitution could only be amended by invoking a four-phased process entailing, “civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.”

READ: Top Lawyers Endorse BBI Ruling As An Affirmation Of Judiciary’s Independence

The judges found President Uhuru Kenyatta to have violated the Constitution, particularly Chapter 6, when he initiated the process following his handshake with former Prime minister Raila Odinga.

“A constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under article 256 or through a Popular Initiative under Article 257 of the Constitution,” the bench ruled.


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