President Uhuru Kenyatta is not fully immune to litigation for his action or inaction while in office.
In a landmark ruling, High Court judges George Dulu, William Musyoka and James Wakiaga found that the Constitution does not shield the president from being dragged in a constitutional or judicial review court even when in office.
The judges, however, pointed out that he should not be sued in person but through the Attorney General (AG).
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While dismissing AG Kihara Kariuki’s argument that the president can only be impeached or pursued after leaving office, the judges ruled that the law only shields him from criminal liability.
“We hold and find that the purposive interpretation does not hold absolute immunity in terms of judicial review orders or constitutional determinations for acts and omissions while he is in office. It means that the president does not enjoy absolute immunity in litigations,” the judges ruled.
They were making a ruling in a case filed by Katiba Institute and lawyer Adrian Kamotho seeking to force President Kenyatta to swear in 41 judges nominated by the Judicial Service Commission (JSC).
The three judges, however, ordered that Uhuru’s name in Katiba’s court papers be expunged.
They also dismissed the AG’s objection on whether the court could hear a case while there was an appeal in place over the same issue.
According to justices Dulu, Musyoka, and Wakiaga, the AG did not provide proof that there was an appeal challenging the court’s orders for the president to swear in the nominees.
“There is no merit in the objection raised and we proceed to hereby dismiss the objection,” they ruled.
In this case, Uhuru argued that the only available avenue for the lobby is to push for his impeachment through Parliament or pursue him for alleged disobedience of court orders after the end of his term.
The president’s lawyer Paul Wanga argued that the lobby’s only avenue to pursue the president for failing to appoint the nominees forwarded to him by the JSC was through the AG, who is the Government’s legal advisor.
“We are questioning the validity of being joined in the case by the first respondent (Uhuru). It is not that the president cannot be held accountable for inactions but the same should be brought through the Attorney General. Other than the AG, there is an impeachment process and can take action against him after leaving office and not when he is in office,” Wanga argued.
The court also heard that the case by Katiba was moot as it was riding on a judgment issued by a different bench. The president’s lawyer asserted that it would be against the Constitution for the current bench to determine whether the orders were obeyed or not.
“This court has no power to supervise courts of concurrent jurisdictions,” he added.
Uhuru’s argument was supported by the AG. Through Immanuel Mbita, Kihara argued that the push to have the president appoint the judges had been settled and out of the High Court’s hands.
In its reply, Katiba argued that the president was rightfully sued in person and that he does not enjoy absolute immunity. According to the lobby’s lawyer Dudley Ochiel, the AG is Uhuru’s lawyer hence was not a party to its claim of disobedience.
Ochiel claimed that the court sent away lawyer Adrian Kamotho in his case seeking to enforce the judgment by Justices Lydia Achode, James Makau, and Chacha Mwita for failing to enjoin the president.
Meanwhile, the AG also asked the court to dismiss a fresh case filed by Kamotho seeking to bypass the President.
Kihara, in his reply, argued that the case by Kamotho was similar to the one he had earlier filed, seeking the same orders and which the court had dismissed