Attorney General Kihara Kariuki.

| Dennis Onsongo | Nation Media Group

Petitioners in BBI case oppose state’s about-turn on appeal

One of the eight petitioners in the Building Bridges Initiative (BBI) case has opposed the decision of Attorney General Kihara Kariuki to withdraw his request for suspension of the judgment.

Mr Justus Juma has told the High Court deputy registrar that the decision of the AG to withdraw the application for stay is irregular.

The AG cannot abandon the application without the authority of the court, hence he should have sought the permission of the judges to withdraw the stay application, argued Mr Juma.

Through his lawyer Evans Ogada, the petitioner wants the case file to be called for a mention so that the judges can give proper directions on the AG's decision to withdraw the application.

"The said withdrawal has no effect in law without leave of court. My clients verily believe that in granting such leave, the court ought to pronounce itself on the question of costs," said lawyer Ogada in a letter to the High Court Deputy Registrar.

Mr Juma, a resident of Nairobi County and a member of the Justice Freedom Party of Kenya, had filed his petitioner together with Mr Isaac Ogola.

Their lawyer, in a letter to High Court deputy registrar yesterday, said when the AG filed the application for stay of the orders made by the five-judge bench, his two clients instructed him to file a response.

He added that by the time the AG was communicating the withdrawal, another petitioner named Isaac Aluochier had filed his response to the stay application.

In explaining why he withdrew the stay application, the AG had said he wanted to pursue the same relief at the Court of Appeal.

The case by the two petitioners Mr Juma and Mr Ogola, was against distribution of the proposed 70 parliamentary constituencies in the BBI constitutional amendment Bill (2020).

They argued that constituency boundary delimitation is not a purely political matter and that there are constitutional parameters obligated by the Constitution, which have not been followed by the BBI proponents.

They contended that Article 89 of the Constitution and the IEBC Act envision that the function of the constituency boundary delimitation is the function of the electoral commission.

In its judgment, the court concurred with the petitioners and declared that the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020, in so far as it purports to predetermine the allocation of 70 constituencies, is unconstitutional, illegal and irregular.

The court said the electoral commission’s independence is protected by the Constitution and cannot be directed or controlled by any other office or person.

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