Why activists oppose court directive ahead of BBI Supreme Court hearing

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Supreme Court justices during the ruling on whether three justices should recuse themselves from the BBI appeal case. [Collins Kweyu, Standard]

The Supreme Court has issued new guidelines that prevent friends of the court and some activists supporting the Building Bridges Initiative (BBI) appeal from making submissions to the courts.

This means that Attorney General Kihara Kariuki and David Ndii (the main parties) will have 45 minutes to make their BBI points, with the other parties having up to 15 minutes each.

The directive prompted reactions from some parties who took it upon themselves to poke holes in the Supreme Court’s decision.

The instructions, issued on Saturday January 14 by a coram of all judges of the Supreme Court, prohibits all amici curiae (friends of the court) and all respondents (except David Ndii) from displaying their briefs during the hearing.

“The Kenya Human Rights Commission, Dr Duncan Ojwang, Dr John Osogo Ambani, Dr Linda Musumba and Dr Jack Mwimali being amici curiae admitted to the Court of Appeals must also not highlight their arguments,” the Supreme Court ordered.

The guidelines only gave parties supporting the case 15 minutes to also make their case.

In response, those barred by the courts wrote to the Deputy Clerk of the Supreme Court objecting to the guidelines.

Justus Juma and Isaac Ogolla, 11and and 12and respondents, wrote to the Supreme Court seeking clarification on the time allotted to the respondents, a letter seen by The standard shows.

Through their lawyers, JL Onyango and Co., the campaigners say they are the only claimants to have raised the constituency delimitation issue in the High Court.

“The issue of electoral boundaries is an important point of appeal for the Attorney General before the Supreme Court. Therefore, we are requesting sufficient time to highlight our submissions in this unique case,” the duo explained.

Dr Duncan Oburu Ojwang, Prof John Osogo Ambani and Linda Andisi Musumba, 74and, 75and and 76 respondents, say they are harmed by the orders.

Through their lawyers Muthoni Nyugutu and Co., the trio urged the court to reevaluate the punitive orders against them.

“The Defendants are listed and appear as such in these Consolidated Appeals. They filed Grounds of Opposition to Consolidated Appeal Motions dated October 19, 2021 in this Court,” they said.

The Supreme Court also ordered that only two attorneys represent each party (appellants and respondents) with only 45 minutes to make their case.

“The time limit must be strictly adhered to and when the timer goes off, the microphone automatically turns off,” said the seven judges.

The BBI’s appeal hearing before the Supreme Court is scheduled for January 18 (Tuesday) to January 20 (Thursday).

On November 9, 2021, the Supreme Court denied a request that three justices recuse themselves from the BBI appeal case.

This was after an activist, Isaac Aluochier, demanded that judges Njoki Ndungu, Smokin Wanjala and Mohammed Ibrahim recuse themselves from the case, on the grounds that they are biased.

It was then that the court set the hearing date and rejected a request by PNU to join the BBI case as an interested party saying it had not met the threshold.

The BBI case was first heard in the High Court before the parties filed an appeal in the High Court.

Court of Appeal judges Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott rendered their judgment on August 20, 2021.

Download the BBI Judgment by the Seven Judges – Civil Appeal No. E291 of 2021


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