Supreme Court judges decline to withdraw from BBI case, hearing set for January

The Supreme Court has issued directions on the hearing of the Building Bridges Initiative (BBI) appeal case set to begin in January 2022.

During the mention of the case on Tuesday, the Supreme Court dismissed an application to have three judges; Njoki Ndung’u, Smokin Wanjala and Mohamed Ibrahim recuse themselves from the case.

Deputy Chief Justice Philomena Mwilu, who read the court’s ruling on the issue, said the commission and the three judges were not aware of the said petition.

“The existence of the application against the three judges, JSC reports it does not have evidence of receiving such a petition and the three judges are also not aware of the petition filed by the applicant,” said justice Mwilu.

The apex court also consolidated the three appeals filed by President Uhuru Kenyatta, the Independent Electoral and Boundaries Commission (IEBC) and the Attorney General into one case.

The court directed that the hearing of the case take place for three consecutive days from January 18 to January 20, 2022.

At the same time, the court allowed an application by two professors to be enjoined in the case as friends of court but declined the same bid by the Party of National Unity (PNU).

The parties involved in the case were also given guidelines on the issues to address while making their written submissions.

Among the seven issues in question is whether the President can be sued in his own capacity as an individual while in office.

The Attorney-General is challenging eight findings of the Appellate Court that overturned President Uhuru Kenyatta's bid to amend the constitution. 

Through Solicitor General Kennedy Ogeto, the AG is fighting the court's finding that the Basic Structure Doctrine is applicable in Kenya.

In the verdict, the judges ruled that despite BBI being fashioned as a popular initiative, it was initiated by the president, essentially losing out on the popular initiative drive.