Justice Sichale: President is not immune from civil suits

Court of Appeal judges

Court of Appeal Judges (from right) Justices Francis Tuiyott, Gatembu Kairu, Hannah Okwengu, Daniel Musinga (Presiding Judge and President of the Court of Appeal) Roselyn Nambuye, Patrick Kiage and Fatuma Sichale. 

Photo credit: File | Jeff Angote | Nation Media Group

Justice Fatuma Sichale, in her personal decision on the BBI appeal, has said that the President is not immune from civil suits. 

She was responding to the High Court ruling that found that a civil case could be instituted against the President or a person performing the functions of the President when it found the entire BBI process unconstitutional.

"When it comes to civil proceedings, the President is not insulated if he does anything or fails to do anything in his own personal capacity," she said on Friday.

Justice Fatuma Sichale

Justice Fatuma Sichale.

Photo credit: File | Jeff Angote | Nation Media Group

However, she found the petition filed against President Uhuru Kenyatta was not served upon him. She said that at no point was the High Court shown affidavit of service to President Kenyatta, noting that he is entitled to equity and freedom from discrimination. 

Justice Sichale also said that President Kenyatta cannot be a Wanjiku and cannot initiate changes to the Constitution through a popular initiative as provided for in Article 257.

On the Independent Electoral and Boundaries Commission (IEBC), Justice Sichale differed with Justice Francis Tuiyott, saying the Commission was not null and void.

"I am of the opinion that verification of signatures was not null and void and IEBC did not lack quorum," she said. 

Justice Sichale further said that the proposal for creation of 70 new constituencies is not unconstitutional.  

"Kenyans have a right to increase or decrease the number of constituencies to ensure there is no underrepresentation. The proposal in BBI sought to increase the boundaries, not interfering with boundaries, that is not delimitation," she said.

Justice Tuiyott's decision

Justice Tuiyott, in his decision read before hers, said he found that IEBC lacked quorum while verifying BBI signatures.

While delivering part of his decision on the BBI verdict, has said that he agrees with the High Court ruling that found that the elections body lacked quorum while verifying signatures.

He said that the IEBC needed to be in the right quorum. Lack of quorum, he noted, could lead to members of the public losing confidence in the ability and neutrality of the Commission.

The judges were speaking Friday as the seven-judge bench of the Court of Appeal delivers its decision on the constitutionality of BBI.

Justice Francis Tuiyott.

All seven judges have written their own judgements and shall read their respective decisions personally.

Today's much-awaited session was opened at 9am by Justice Daniel Musinga, the president of the Appellate Court. 

Watch the live BBI nproceedings here and follow a liveblog of the judges' individual decisions here 

Additional reporting by Lynette Mukami

Download a copy of the BBI report here: bbi-report

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