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Confusion as State’s legal advisor withdraws stay application

Wednesday, May 19th, 2021 00:00 | By
Attorney General
Attorney General Kihara Kariuki: PHOTO/courtesy
Attorney General Kihara Kariuki: PHOTO/courtesy

Bernice Mbugua @BerniceMuhindi

Attorney General Kihara Kariuki has withdrawn his application at the High Court seeking to suspend the judgment that nullified the Building Bridges Initiative process.

The AG, through Deputy Chief State Counsel Emmanuel Bitta filed the notice of withdrawal yesterday, a day after the High Court certified the matter as urgent and directed all parties to file and serve their responses by close of business today.

“The application is certified urgent to warrant it to be considered on an emergency basis.

The court will give a ruling based on the written material placed before by email on Wednesday, 26/05/2021,” the judges had ruled. 

However, in a letter dated May 18, the AG notified the Constitutional and Human Rights Division of the High Court of his decision to withdraw his application for stay of the “BBI judgement.”

“Take notice that the Hon Attorney General withdraws his notice of motion of application dated  May 14, as he is desirous of invoking the concurrent jurisdiction of the Court of Appeal to seek similar reliefs,” read the notice.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita on Thursday last week ruled that the entire BBI process was unconstitutional.

Irreparable harm

The AG thereafter filed an application seeking to stay the judgment pending the hearing and determination of the appeal they will file at the High Court. 

AG, through the Solicitor General Kennedy Ogeto, filed the appeal notice, saying he was dissatisfied with the entire decision of the five-judge Bench judgment.

The five-judge Bench declared the BBI process illegitimate, as it was an initiative of President Uhuru aimed at amending the Constitution in contravention of the law.

“The court be pleased to order a stay of execution of the judgement, decree and any other consequential order delivered on May 13 by the High Court pending hearing and determination of the application for stay under Rule 5(2)(b) of the Court of Appeal rules,”  Ogeto said in an affidavit. 

According to the AG, no prejudice will be suffered by the petitioners in the event the Court of Appeal stays the judgement.

Ogeto argues that if the stay order is not granted, the State will suffer prejudice as the consolidated petitioners will proceed to execute the orders rendering the intended appeal nugatory.

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