Three respondents denied bid to raise their submissions, Karua storms out of Supreme Court

The Supreme Court has today denied bid to reclassify three parties in the Building Bridges Initiative (BBI) appeal as respondents instead of amicus curiae.

The BBI appeal case hearing headed by chief Justice Martha Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko is set to go on for three days and the final judgement will be delivered on Thursday.

The apex, issued directives after considering preliminary matters raised by some of the litigants which included request for allocation of additional time, the court determined that the trio will not make oral submissions during the three-day hearing.

“As regards the participation of amicus curie joined at the High Court our position is that they will remain friends of the court and we will not allow them time to submit,” Koome ruled.

The verdict by Koome on behalf of a seven-judge bench of the court was in response to a request by former Constitutional Affairs Minister Martha Karua who termed the reclassification of her clients as erroneous.

Duncan Oburu Ojwang, John Osogo Ambani and Linda Andisi Musumba who appeared as respondents before the Court of Appeal, where the BBI constitutional review process was invalidated on August 20, 2021, had asked the court to restore the status they were accorded at the appellate court.

“We too require our time to highlight certain issues. We urge the court not to reduce us to spectators by changing our status,” Karua told Supreme Court judges.

“We’re respondents and this court has treated us as respondents by entertaining our application for consolidation. Anamicus curiae cannot make an application for consolidation,” Karua who appeared alongside lawyer Muthoni Nyigutu told the 7-member panel led by Chief Justice Martha Koome.

The Supreme Court however acceded to a demand by parties to extend time allocated in directives issued on January 14.

“We were told we need to give this matter more time and we agree this is an important matter. We’ve considered these requests and looked at other jurisdictions on the matter of time allocation so we’ll give you more time to highlight your submissions,” Justice Koome told parties.

Karua literally stormed out of the hearing taking to her social media, after the Court resolved to exclude their clients from highlighting their submissions.

According to Karua, the Supreme Court judges reasoned that because their clients had joined the case in the High Court as amici curiae, they would remain as such before the apex court.

“We walked out of the Supreme Court BBI appeal after the court made a decision to exclude our clients the 74th, 75th and 76th respondents from highlighting their submissions. The Supreme Court reasoned that because our clients joined the case in the High court as amici curiae (friends of the court) they remain so before the Supreme Court yet the appellants are named our clients as respondents,” read Karua post on her Twitter account.

She further noted that they had already submitted an application for consolidation seeking to be allocated more time- but Karua claimed that the court treated her and the team as respondents.

“Our position is that we were named as respondents in the Court of appeal and now in the Supreme Court and we participated as respondents in the Supreme Court in December 2021 when we successfully made an application to consolidate the appeals.

“We therefore submitted that the supreme court cannot turn around and lock us out having entertained us as respondents in previous case in any event no litigant or interested party should be locked out of hearing or treated in a discriminatory manner especially in a court of last resort,” she noted.

During the BBI hearing, the Senior Counsel had called out the supreme court judges advocating for equality of the allocation of time when making submissions.

“Our position also is that regarding every party before the court including interested parties, with this being the highest court, nobody should be shut out. Everybody should be given a hearing,” she addressed the bench led by Chief Justice Martha Koome.