BBI Appeal; Gatonye wants all orders against President Uhuru declared null and void

Lawyer Waweru Gatonye wants all orders against the President Uhuru Kenyatta to be declared null and void.

Making his submission, Gatonye claimed that his client, President Kenyatta, was not served with the Building Bridges Initiative(BBI) court process.

“…the appeal before you is a passional appeal that arises most specifically from declarations and orders made against His Excellency the President in the judgement that has been under consideration since yesterday,” he said.

He argued that when a party has been sued in legal proceedings, he is clearly entitled to be notified through service of the allegations made against him.

“His Excellency the President was impleaded in his personal capacity in High Court petition no. E426 of 2010 filed by one Isaac Aluoch Polo and the other respondent Attorney General and Independent Electoral and Boundaries Commission(IEBC),” he argued.

Additionally, he noted that the president was sued in his private capacity.

“The president should have responded to the petition in person or through his legal team but he was never served with the proceedings despite being sued,” he added.

According to him, it was wrong for the superior court to make a finding and declarations that the President had contravened Article 73 1 A of the constitutional of Kenya.

Failure to serve proceedings, Gatonye said the court breached his rights given by the constitution of fair trial.

The High Court had found that the President acted in excess of his powers and contravened the Constitution, in particular Chapter Six, when he initiated and promoted a constitutional change.

A section of lawyers warned that this finding could be used as grounds to impeach him.

The bench led by Justice Joel Ngugi said the President made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue that is not available to him.

According to the court, he should have used parliamentary initiative by petitioning the National Assembly through the Attorney-General to consider the desired amendments, the court ruled.

They described the BBI process as “a presidential initiative guised as a popular initiative”, and allowing it to be sustained amounts to having the Head of State as promoter and referee of his own initiative.

“President cannot be an initiator of and an umpire in amendment of the Constitution,” said the court, adding that the BBI was muddled by conflict of interest.