Judge Joel Ngugi

Following the High Court’s judgment outlawing a Bill to amend the Constitution, declaring that President Kenyatta was in breach of the Constitution and that he could be sued in his personal capacity, the President has in turn mounted a personal case at the Court of Appeal to overturn the judgment.

Two weeks ago the High Court led by Judge Joel Ngugi, declared that President Kenyatta had violated Chapter Six of the Constitution on Leadership and Integrity and that the Building Bridges Initiative (BBI) campaign to amend the Constitution was unconstitutional.

Could Kenyatta be declared unfit to hold public office?

In declaring that President Kenyatta had contravened Chapter 6 of the Constitution and in particular Article 73(1)(a)(i) by promoting a constitutional change in contravention of the provisions on amendments to the Constitution, the High Court could have opened the way for the President to face a petition declaring him unfit to hold public office.

Yesterday, in a notice of Appeal filed by private lawyers Waweru Gatoynye & Company, the President presented nine findings that he believes wronged him including the High Court’s decision to determine a matter against him “without ensuring that personal service had been effected upon him”.

President Could be Sued in His Personal Capacity?

Most grievous to President Kenyatta was the High Court’s judgment that the President could be sued in his personal capacity. Hence in response the President has had to rely on private lawyers in responding not the Attorney General who is only able to act on behalf of the President if he is sued in his official capacity.

The AG has however also filed a separate appeal against the High Court’s verdict in respect of the BBI.

Although President Kenyatta is named in the suit as a respondent he did not enter an appearance in court.