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 at the Court of Appeal, Supreme Court buildings in Nairobi on August 20, 2021 during judgement of an appeal filed by the government seeking to revive the BBI Bill. 

| Dennis Onsongo | Nation Media Group

Lobby wants court to review BBI ruling ‘error’

What you need to know:

  • The group says its reading of the 1,089-page judgment reveals it won more than what was declared by the court in its final dispositions.
  • The BBI was a multi-subject constitutional amendment Bill, with 74 proposed changes on statutes and the Constitution.

A lobby group that opposed the Building Bridges Initiative (BBI) Bill in court wants the Court of Appeal to review its judgment and rectify a declaration that it says was erroneously made in favour of the government. 

The group, Linda Katiba, says its reading of the 1,089-page judgment reveals it won more than what was declared by the court in its final dispositions.

It says there is a possibility of an error in the final tally of the judges who voted on the question of whether the proposed referendum in the BBI was supposed to be an omnibus constitutional amendment Bill, or a series of separate and individual amendment proposals. 

The BBI was a multi-subject constitutional amendment Bill, with 74 proposed changes on statutes and the Constitution.

"Our reading of the judgment delivered by the Court of Appeal reveals the possibility of an error in the final tally of the Judges of Appeal who voted to overturn the findings of the High Court that: Article 257(10) of the Constitution of Kenya 2010, requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people," reads a letter to the president of the Court of Appeal, Justice Daniel Musinga, seeking rectification. The letter was written by lawyer Morara Omoke, a member of the group. 

He says the final orders issued by the appellate court indicate that the High Court's finding on the issue was overturned, after four judges found that it was not illegal to combine all of the amendments proposed in the BBI into one single enormous Bill. 

Unnecessary appeals

Justices Roselyne Nambuye, Hannah Okwengu and Patrick Kiage had dissented and upheld the High Court decision, but being the minority, their decision could not hold. Justices Musinga, Fatuma Sichale, Gatembu Kairu and Francis Tuiyott overruled the High Court's finding on that point. 

But Mr Omoke says the group noted that Justice Kairu did not overturn the findings of the High Court on this issue. On the contrary, throughout his analysis and findings on this issue, it emerges that he upheld the decision of the High Court.

According to Mr Omoke, Justice Kairu even enriched his judgment on the issue by stating that "what in my view Article 257(10) of the Constitution does not contemplate is the submission to the people in a referendum of an omnibus amendment Bill, a hotchpotch of an amendment Bill, such as the Constitution Amendment Bill in this case."

The also said: "The argument that it would be impractical on account of logistical difficulties to formulate over 70 separate and distinct questions is perhaps more the reason that an omnibus amendment Bill should never be entertained.”

In the letter, Mr Omoke urges the court's president to refer to one of the paragraphs where Justice Kairu states: "I would qualify the declaration by the High Court that: Article 257(10) of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people by adding the words ‘subject to the nature of proposed amendment’.”

He urges the court to consider rectifying its judgment to avoid confusion and unnecessary appeals.

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