Court of Appeal to deliver ruling on BBI case on August 20 as legal battle ends

Court of Appeal President Daniel Musinga. [Collins Kweyu, Standard]

The Court of Appeal will deliver its judgement on the Building Bridges Initiative (BBI) appeal case on August 20, 2021.

Appellate court President Daniel Musinga said the seven-judge-bench hearing the case had made careful deliberations as the four-day hearing comes to a close.

“We deliberated on this date, looking at the nature of the matter and volumes before us,” Justice Musinga said.

Since Tuesday, court has been hearing submissions by proponents and opponents in the case, who are seeking to have High Court’s judgement that nullified the BBI overturned or upheld.

There were nine issues at the heart of the hearing, among them public participation, IEBC quorum and role of BBI promoters and initiators. For four days, top legal minds, old and new, took turns to defend their arguments, treating Kenyans to a legal face-off.

On Friday, Senior Counsel John Khaminwa urged the seven-judge-bench to dismiss President Uhuru Kenyatta’s application, on grounds that he had shown disrespect to the court by failing to appoint the six judges nominated by Judicial Service Commission.

“President Kenyatta has not come to the court with clean hands, therefore the court must refuse to hear him for deliberately refusing to swear in the six judges,” he said.

Thursday was dedicated to respondents in the case, whose team of lawyers challenged the appellants arguments, saying that the public was not involved in the BBI process since its initial stages.

It was Tharaka Nithi Senator Kindiki Kithure who submitted that the push for Constitutional change was not a popular initiative as claimed by the proponents, but a presidential initiative.

“The President has no right to initiate a popular initiative because this avenue of the popular initiative is reserved for private citizens including civil society, and is not available to State organs or State officers,” the lawyer said.

Lawyers for the BBI Secretariat told court that the promoters of the popular initiative were Co-Chairs Junet Mohammed and Dennis Waweru and not President Uhuru, as had been ruled in the High Court judgement.  

“Against all uncontroverted evidence, the promoters of this initiative were Dennis Waweru and Junet Mohamed. The court insists on finding President Kenyatta as the promoter. Anyone can support the initiative,” Lawyer Otiende Amollo argued.

The case was heard by Court of Appeal President Daniel Musinga and Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.

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