The seven judges who will decide fate of BBI appeal
Court of Appeal President Justice Daniel Musinga (centre) Justices Roselyn Nambuye (left) and Hannah Okwengu in court on June 2, 2021 after giving directions on the Building Bridges' initiative (BBI) appeal.
Court of Appeal president Justice Daniel Musinga has appointed a seven-judge bench to hear and determine five appeals filed against a High Court ruling that blocked a plan to change the Constitution.
Justice Musinga will be the presiding judge on the bench that will determine the fate of President Uhuru Kenyatta's Building Bridges Initiative (BBI), whose culmination was amendment of the Constitution to alter the country's governance structure.
The other judges are Justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.
The judges are drawn from various court stations. Justices Musinga, Nambuye, Okwengu and Sichale are based in Nairobi while Justice Tuiyott is from Kisumu. Justice Kairu is the presiding judge in Mombasa and Justice Kiage is the presiding judge in Kisumu.
Justice Tuyoitt joined the Appellate court recently following a recent appointment by President Uhuru Kenyatta.
Hearings set to start
Hearing of the five appeals, lodged by lawyer Charles Kanjama, the BBI secretariat, President Uhuru Kenyatta, the Attorney-General and the electoral agency IEBC, is scheduled to start on Tuesday next week.
However, lawyer Kanjama's appeal hangs in the balance following an application by the Attorney-General seeking to have it struck out on account of being improperly before the court.
The AG's application will be determined on Monday before the bench embarks on the full hearing of appeals.
There is also a cross appeal by lawyer Morara Omoke challenging failure by the High Court to order President Kenyatta to refund public cash spent on the BBI exercise.
Refund cash
Mr Omoke argued that the bench led by Justice Joel Ngugi erred in law by declining his request for an order that President Kenyatta returns any public funds used in the 'unconstitutional process'.
He said the amendments were being promoted by the President through the BBI Steering Committee.
Mr Omoke believes the order of recovery of funds was supposed to ensue because the court found the President does not have the constitutional mandate to initiate constitutional amendments through a popular initiative.
Another reason on why the court should have granted his prayer, he says, is that the court found the President had violated the provisions of Chapter 6 of the Constitution.
He argues it was a mistake for the High Court to decline to order the Auditor General to establish the amount of public funds utilised in promotion of BBI.
In the cross appeal, Mr Omoke wants the appellate court to issue six orders, among them one directing the President to personally refund to the National Treasury the public funds used by the BBI Steering Committee in promoting the Constitution of Kenya Amendment Bill (2020).
He is of the view that the High Court made a mistake by declining to take judicial notice of the fact that huge amount of public funds, including a Sh4 billion car grant to Members of County Assemblies (MCAs), had been utilised in the promotion of amendments to the Constitution through the BBI.
