Justice Musinga petitioned to appoint larger bench to hear BBI appeal – KBC

The new Court of Appeal President Justice Daniel Musinga has been implored to consider appointing an expanded bench to hear the Building Bridges Initiative (BBI) case.

Three respondents in the case through their lawyer Elias Mutuma are proposing a minimum seven-judge bench owing to the complexity and nature of the issues involved in the case which is of great public interest.

Mutuma on behalf of Thirdway Alliance, Miruru Waweru and Angela Mwikali who were petitioners in the high court case also wants Justice Musinga to assign a case management hearing first so that the court can be able to assess the number of applications made by parties and to help provide coordinated coherent seamless directions to ensure expeditious and efficient disposal of all the applications filed.

He argues that since the high court ruling that rendered the BBI constitutional amendment process null and void was made by five judges, it would only be credible if a larger bench determined the matter.

“That you consider assigning this case to a minimum Seven-Judge Bench considering the complexity, breadth and nature of the issues involved including the great public interest the matter has generated. Moreover, it is our humble view that given that the matter was considered by a five-judge bench of the High Court, an expanded bench of the Court of Appeal is ideal for debate purposes on alternative views by an expended bench. This will, in turn, give great credibility to whatever decision the Court arrives at” Mutuma said.

The lawyer empathises that the outcome of the case is highly consequential to the functioning of our constitutional democracy, therefore the appeal should be heard physically including oral submissions that should get substantial time.

“That owing to previously experienced technical hitches associated with virtual proceedings the court considers, an open/physical session with strict adherence to MOH protocols on COVID 19” he pleads.

Justice Daniel Musinga is yet to constitute a bench to hear the appeals lodged by several parties the latest being President Uhuru Kenyatta.

Through his lawyer Waweru Gatonye, the President Tuesday faulted the five high court judges for proceeding to hear and determine a matter against him, without ensuring he had been served in person by his accusers.

The head of state has questioned the basis of the judges’ verdict that he had violated provisions of Chapter 6 of the Constitution on leadership and integrity.

The Court of Appeal duty judge has certified the Building Bridges Initiative (BBI) appeal filed by the state as urgent.

Applicants have three days to file and serve written submissions or any other relevant documents.