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I was condemned unheard, President tells Court of Appeal

By Kamau Muthoni | July 1st 2021

Judges at the Appellate court for the hearing of the BBI appeal on June 30. [Denish Ochieng, Standard]

President Uhuru Kenyatta wants the Court of Appeal to quash all adverse findings against him by High Court, arguing that he was condemned unheard.

The Court of Appeal yesterday heard that although the High Court found that the president can be sued in his personal capacity, it proceeded on the belief that he was being represented by Attorney General Kihara Kariuki and was not served with court papers.

The president faulted justices Joel Ngugi, Jairus Ngaah, George Odunga, Teresiah Matheka and Chacha Mwita, saying their ruling will hamper his discharge of duties.

His lawyer Waweru Gatonye argued that although the five judges found that Uhuru was aware of the case, hence, ought to have appeared in person or hired a lawyer, the Constitution only provides that he ought to have been supplied with the allegations in order to either deny or admit.

“The superior court proceeded as if the Attorney General was representing the President. Surprisingly the judges did not ascertain whether the president had been served,” he said.

“The president was never served with the proceedings although he was sued in his private capacity. I invite you to look at the record of the court as supplied and the documents of the respondents, the president was not served. Having knowledge does not mean being served. My prayer today, on behalf of the president, is that you quash all the adverse findings against the president.”

Lawyers Waweru Gatonye (left) and Paul Wanga at the Appellate court for the hearing of the BBI appeal on June 30. [Denish Ochieng, Standard]

The president asserted that he cannot be sued for discharging his duties, adding that the Building Bridges Initiative (BBI) is a quest to ensure peace prevails in the country.

His other lawyer Mohammed Nyaoga argued that if Uhuru has a dog and it bites his neighbour’s child, he can invoke the law to claim immunity and will not be sued until the end of his tenure.

Appeals Court judges heard that the only avenue for the neighbour to deal with the president is to push for impeachment, adding that he enjoys immunity just as judges.

“You cannot sue him, it is absolute,” the senior lawyer argued, adding that Kenya has no law specifying presidential immunity.

He asserted that the Constitution deliberately closed the avenue for the president to be sued or prosecuted while in office, but provided for impeachment, which is the only option. This too is not in the purview of the court but Parliament.

Uhuru’s position is that the court erred by finding that AG could not represent him.

He accused the five judges of bias for determining extraneous issues, which he says were not supported by evidence and were not included in the prayers sought by the petitioners.

Uhuru is contesting the finding that he had breached Chapter Six of the Constitution. “The learned judges proceeded to hear and determine a matter against H.E. Uhuru Muigai Kenyatta without ensuring that personal service had been effected upon him,” Gatonye argued.

Lawyer Waweru Gatonye. [Boniface Okendo, Standard]

Uhuru took a similar position as that of former Prime Minister Raila Odinga that the court injuncted a non-existent entity – the BBI Steering Committee – as the team that was sued ceased to exist in 2020.

The court heard that the BBI steering committee and task force ended on June 30, 2020.

He faulted the court for finding that he cannot initiate changes to the Constitution and can only initiate the same through the AG in Parliament.

Kiragu Kimani, who is also Uhuru’s lawyer, argued that High Court judges did not clarify whether there is a law barring him from participating in push for a referendum.

Court of Appeal President Daniel Musinga and justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott will continue the hearing today.

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