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Why activists oppose court directive ahead of BBI Supreme Court hearing

Supreme Court judges during the ruling on whether three judges should recuse themselves from the BBI appeal case. [Collins Kweyu, Standard]

The Supreme Court has issued new directions that lock out friends of the court and some activists supporting the Building Bridges Initiative (BBI) appeal case from giving submissions to the courts.

This means that Attorney General Kihara Kariuki and David Ndii (the main parties) will have 45 minutes to argue their BBI points as other parties have up to 15 minutes each.

The directive has elicited reactions by some parties who have taken the initiative to poke holes into the move by the apex court.

The directions, issued on Saturday, January 14 by a coram of all judges of the Supreme Court, locked out all ‘amici curiae’ (friends of the court) and all respondents (except David Ndii) from highlighting their briefs during the hearing.

“The Kenya Human Rights Commission, Dr Duncan Ojwang, Dr John Osogo Ambani, Dr Linda Musumba and Dr Jack Mwimali being Amici curiae admitted at the Court of Appeal shall also not highlight their submissions,” the supreme court directed.

The directives only allowed supporting parties in the case 15 minutes to likewise highlight their submissions.

In response, those barred by the courts have written to the Deputy Registrar of the Supreme Court to oppose the directives.

Justus Juma and Isaac Ogolla, the 11th and 12th respondents, have written to the Supreme Court seeking clarification on time allocated to the respondents, a letter seen by The Standard shows.

Through their lawyers, J.L Onyango and Co., the activists argue that they are the only petitioners who raised the question on constituency boundary delimitation at the High Court.

“The issue of constituency boundary delimitation is a material point of appeal by the Attorney General in the Supreme Court. Therefore, we request ample time to highlight our submissions in the unique matter,” the duo argued.

Dr Duncan Oburu Ojwang, Prof John Osogo Ambani and Linda Andisi Musumba, the 74th, 75th and 76 respondents, say that they are adversely affected by the orders.

Through their lawyers Muthoni Nyugutu and Co. advocates, the trio urged the court to reevaluate the punitive orders against them.

“The Respondents are listed and appear as such in the present Consolidated Appeals. They filed Grounds of Opposition to the Consolidated Petitions of Appeal dated October 19, 2021, before this Court,” they said.

The Supreme Court also directed that only two counsels will represent each party (appellants and the respondents) with only 45 minutes to highlight their submissions.

“The allocated time shall be strictly observed and when the timer goes off, the microphone will automatically be switched off” the seven judges directed.

The BBI appeal hearing at the Supreme Court is scheduled for January 18 (Tuesday) up to January 20 (Thursday).

On November 9, 2021, the Supreme Court dismissed an application to have three judges recuse themselves from the BBI appeal case.

This was after an activist, Isaac Aluochier, applied to have Justices Njoki Ndungu, Smokin Wanjala, and Mohammed Ibrahim recuse themselves from the matter, on grounds they are biased.

It is then that the court set up the hearing date and threw out an application by PNU to join the BBI case as an interested party saying ‘it had not met the threshold.’.

The BBI case was first heard at the High court before the parties filed for an appeal at the High Court.

Court of Appeal judges, Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott delivered their judgment on August 20, 2021.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021