President Uhuru Kenyatta has launched his personal fight in court for the Building Bridges Initiative (BBI).
Through lawyer Waweru Gatonye, President Kenyatta has filed a notice of appeal against the High Court judgment that declared the BBI illegal, null and unconstitutional.
In the court papers, the president says, being an affected party named as the first Respondent in one of the eight petitions and being dissatisfied with the judgment delivered on May 13, 2021, he intends to appeal to the Court of Appeal against part of the judgment.
President Kenyatta has raised nine points in his notice of appeal, faulting the judgment delivered by a five-judge bench led by Prof Justice Jiel Ngugi.
The president is against High Court declaration that he can be sued in his personal capacity and not as the President of the Republic of Kenya.
Although he had been named as a respondent, President Kenyatta did not enter appearance in the proceedings and neither did he file any grounds of objection or a replying affidavit to contest the proceedings on the ground of misjoinder.
The court held that the Head of State ought to have responded to the petition either himself or by his duly appointed representatives and contest his inclusion in the petition on any grounds that would be available to him and not through the Attorney General.
"The judges proceeded to hear and determine a matter against H.E. Uhuru Muigai Kenyatta without ensuring that personal service had been effected upon him," reads the document.
President Kenyatta is aggrieved that the judges later issued a declaration that he has contravened Chapter 6 of the Constitution, and specifically Article 73(1) (a) (i) of the Constitution, by initiating and promoting a constitutional change process under Article 257 contrary to the provisions of the Constitution.
He is also fighting the judges' declaration that civil court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.
To further explain why he is appealing against the judgment, the President says the court held and issued a declaration that he does not have authority under the Constitution to initiate changes to the Constitution.
He is also fighting the High Court's declaration is that a constitutional amendment can only be initiated by the President through the Attorney General in Parliament through a Parliamentary initiative under Article 256 of the Constitution.
The president also intends to challenge a declaration that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report was an illegal group.
He established the task force vide a Kenya Gazette Notice dated January 3, 2020 and published in a special issue of the Kenya Gazette of January 10, 2020 but the High Court declared the task force as an unconstitutional and unlawful entity.
