Attorney-General Paul Kihara Appeals Against High Court Ruling on BBI

Attorney-General Paul Kihara has filed an appeal against a High Court ruling that declared the entire Building Bridges Initiative (BBI) referendum process unconstitutional.

Through Solicitor-General Kennedy Ogeto, Kihara also filed an application seeking stay orders of the execution of the judgment pending the hearing and determination of the application and appeal.

He argues that he will suffer prejudice if the stay orders are not granted.

“No prejudice will be will be occasioned to the petitioners in the event this Honourable Court stays the implementation of the orders in the judgment issued on 13th May 2021,” he states.

Kihara further notes that any move by the applicants to implement the orders will render his intended appeal nugatory and cause him irreparable harm.

“Unless this application for stay of execution of orders is heard urgently, there is a real risk that the findings contained in this Honourable Court’s judgment of 13th May 2021 will be fully delivered occasioning great prejudice to the 1st respondent,” he adds.

The Constitution of Kenya (Amendment) Bill 2020 suffered a setback after a five-judge bench ruled that President Kenyatta overstretched his mandate when he initiated the popular initiative.

The judges averred that there are only two ways in which a constitutional amendment can be initiated; either by Parliamentary Initiative or by Popular Initiative.

“It is clear that the Constitution Amendment Bill is an initiative of the President. The President has no power under the Constitution, as President, to initiate changes to the Constitution under Article 256 of the Constitution since Parliament is the only State organ granted authority by or under the Constitution to consider and effect constitutional changes. The President, if he so desires, can, however, through the Office of the Attorney General, use the Parliamentary initiative to propose amendments to the Constitution.”