BBI appeal case: Martha Karua, Dudley Ochiel blocked from addressing judges

Supreme Court, Martha Karua

Senior counsels Martha Karua (left) Githu Muigai and Eric Gumbo during the BBI hearing at the Supreme Court building on January 18, 2022. 

Photo credit: Dennis Onsongo | Nation Media Group

Two lawyers walked out of the Supreme Court on Tuesday after being blocked from addressing judges during a hearing of a case that involves amendment of the constitution through the Building Bridges Initiative (BBI).

Narc-Kenya leader Martha Karua and Dudley Ochiel walked out of the apex court on Tuesday morning after Chief Justice Martha Koome ruled that they could not make oral arguments in the appeals filed by the Attorney General, the Independent Electoral and Boundaries Commission and lawyer Morara Omoke.

The advocates were representing some members of a citizens’ voluntary group (Linda Katiba) that sued the government two years ago in a bid to stop the proposed changes in the Constitution.

Chief Justice Koome excluded the activists led by Dr Duncan Ojwang, Dr John Osogo Ambani, Dr Linda Musumba and Dr Jack Mwimali together with the Kenya Human Rights Commission (KHRC) on grounds that they are not substantive respondents to the appeal.

The CJ stated that the five being amici curiae (friend of court) admitted at the Court of Appeal will not highlight their written submissions during hearing of appeal that partly seeks to revive the BBI.

Supreme Court

She ruled that since the five joined the BBI case in the High court as amici curiae (friends of the court) they should remain so before the Supreme Court.

During the session, held inside a tent outside the Supreme Court building, Judge Isaac Lenaola questioned when the said ‘amicii’ (friends of court) mutated to become respondents in the dispute.

But Ms Karua, a senior counsel, explained that the clients were made respondents at the court of appeal and they participated extensively in the proceedings.

She explained that the Supreme Court cannot turn around and lock them out having listed them as respondents in the court papers and having participated as such in previous proceedings ahead of the hearing.

Three days

After being locked out she sought CJ’s Koome’s authority to leave the courtroom, since they had been reduced to spectators of the proceedings that had been scheduled to run for three days.

She later took to social media to explain about the incident.

“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,” she said.

She continued: 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.

And since the top court had accommodated the written submissions, she questioned why the court decided to block them from highlighting the same orally.

Oral submissions

“Lawyers sit in court to listen to and respond to arguments and therefore having been denied the opportunity to make oral submissions which reduced us to spectators, we had no further role and remaining in the court would be of no use to our clients,” said Ms Karua.