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Uhuru did not get fair hearing but he can be sued, say judges in BBI appeal case

By Kamau Muthoni | August 21st 2021

President Uhuru Kenyatta. [Tabitha Otwori, Standard]

The Court of Appeal yesterday faulted the High Court for indicting President Uhuru Kenyatta for his involvement in the Building Bridges Initiative (BBI), without giving him an opportunity to be heard.

The court faulted Justices Joel Ngugi, Jairus Ngaah, Teresiah Matheka, George Odunga and Chacha Mwita for condemning President Kenyatta without giving him a chance to be heard.

However, there was unanimity that the president does not enjoy absolute immunity and can be sued in person for actions beyond powers granted to him by the Constitution.

Court of Appeal Judges Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott found that after the High Court found that Attorney General Kihara Kariuki could not represent Uhuru, they ought to have ascertained he was served with court documents.

Justice Sichale was of the view that at no point did the High Court show a return of service on Uhuru. She said the email through which the president is said to have been served seemed not to be a personal address.

“Denial of the right to be heard renders the entire judgement null and void. It is wrong for the High Court to have proceeded and thereafter made adverse findings without ascertaining that he was served with the hearing notice,” she ruled.

In a similar finding, Justice Kairu found that court records show that there was no inquiry on whether or not all parties were served.

“It appears to me that whether or not the president was served was overlooked by the High Court. For that reason alone, I would set aside the judgement against the president,” he ruled. He, however, upheld that Uhuru could be sued in his personal capacity.

Justice Okwengu, on the other hand, held that the president ought to have been accorded a fair hearing before making a finding on him.

Justice Nambuye said she agreed with the other judges that if Uhuru was to be condemned, he ought to have been given a chance to participate in the case.

The High Court found that Uhuru had breached Chapter 6 of the Constitution and can be personally held accountable.

Court of Appeal judges, from left, Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe, and Francis Tuiyot. August 20, 2021. [Collins Kweyu, Standard]

However, the BBI proponents argued that there was a separate judgement by Justice John Mativo, which cleared Uhuru’s participation.

The conflict, however, was heightened by the participation of former Prime Minister Raila Odinga who is not part of government. He was the main driver of the BBI process, with the president appearing occasionally to drum up support for the initiative.

Uhuru had urged the Court of Appeal to quash all adverse findings against him by the High Court, arguing that he had been condemned unheard.

Personal capacity

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

The president faulted the five judges, saying their ruling would 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.

“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,” said Gatonye. 

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