BBI appeal: Supreme Court dismisses case against three top judges
Supreme Court judges during a sitting on November 9, 2021.
The Supreme Court on Tuesday dismissed an application for recusal of three judges from hearing the Building Bridges Initiative (BBI) case over perceived impartiality.
The court said the alleged bias and impartiality by Mr Isaac Aluochier, a member of the citizens' voluntary group opposed to the BBI), is speculative and there was no evidence to support the same.
In the ruling read by Deputy Chief Justice Philomena Mwilu, the court also premised its decision on the doctrine of necessity to have the case heard by the full bench -of seven judges- owing to the public interest.
Mr Aluochier wanted Justices Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung'u to stay away from the case because he had initially sought their removal from office over alleged gross misconduct. He said he filed the petition at the Judicial Service Commission (JSC) in April 2016.
He explained the JSC has never responded to his petition despite the High Court asking it to do so. He feared that with the petitions having not been determined, the three judges were likely to be biased against his case on the BBI and that he may not get a fair hearing.
But the court said it had taken a step to confirm the existence of the removal petition at the JSC, and found that there is nothing on record about the said petition.
The three judges are also not aware of the existence of the petitions, the court said.
Further, that having lodged his petition at JSC Mr Aluochier should have allowed the same to take its cause since the Commission is an independent body and operates separately from the court.
Mr Aluochier's application for disqualification of the three judges was not supported by any of the parties but was opposed by one.
At the same time, the court allowed eight foreign and local constitutional experts to participate in the case as friends of the court.
It was held that the scholars led by Professors Migai Akech (Kenya), Richard Albert (USA), Yaniv Roznai (Israel), Rosalind Dixon (Australia), David E. Landau (USA) and Gautam Bhatia (India) will be valuable and of assistance to the court in determining questions related to the amendment of the Constitution as proposed in the BBI bill.
The other scholars are Professors Charles Manga Fombard and Adem Adebe.
The court however dismissed a request by the Party of National Unity (PNU) to join the dispute as an interested party. The court held that PNU has not established personal interest or stake in the matter. PNU has not shown what prejudice it would suffer unless it participates in the appeal.
In readiness for the hearing of the case scheduled for January 18 to 20, 2022 the court directed them to file their written arguments within one month (15 days for appellants and a further 15 days for respondents) and a 28-page limit.
