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Court of Appeal Justice Kairu Gatembu has agreed with the May 14 decision by the High Court that President Uhuru Kenyatta can be sued in his official capacity.
While delivering his rulling on Friday, August 20, Gatembu together with Justice Fatuma Sichale shared the same argument and rulling that President Uhuru Kenyatta can be sued in his official capacity.
"The High Court record continued to show that there was no appearance for the first respondent, the president. The President was served via email on 21st December. The president can be sued in his personal capacity during his tenure," Gatembu ruled.
In her judgement, Justice Sichale ruled that President Uhuru cannot identify himself as Wanjiku - a common mwananchi- given that the office he occupies dictates he is President 24/7.
“His Excellency the President cannot be a Wanjiku. I agree with the High Court that the President cannot initiate changes through popular Initiative,” she stated.
Gatembu further agreed with the High Court's decision on the involvement of President Uhuru in the BBI process terming it as irregular.
He ruled that the President and Executive cannot initiate amendments by popular initiative, on grounds that the route is a preserve of the general public.
“The president’s involvement in the BBI was not in his private capacity. It was also necessary for the public to be supplied with adequate copies of the Bill for their consumption before collection of their signatures,” Gatembu said.
The involvement of President Uhuru in the BBI process predominantly featured in the High Court rulling presided over by Justice Joel Ngugi and justices George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita who ruled in favour of eight petitioners who sought to bar the bill from proceeding to a referendum.
While stating their case, the eight petitioners including economist David Ndii, Kenya National Union of Nurses, Thirdway Alliance, 254Hope, Justus Juma and Moraa Omoke argued that the BBI bill was not a popular initiative but an agenda based on changing political waves within the country.
In the 500 page judgment, the judges analyzed whether due process was followed when the bill was being drafted, presented to the County Assemblies and eventually Parliament and whether it was a popular initiative that should proceed to a referendum.