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Bernice Mbugua @BerniceMuhindi

Lawyers representing President Uhuru Kenyatta yesterday argued that he has absolute immunity and cannot be sued while executing his official duties contrary to the declaration of the High Court last month.

Senior Counsel Waweru Gatonye, Mohammed Nyaoga and lawyer Kiragu Kimani asked the Appeal Court to set aside the Building Bridges Initiative (BBI) judgment saying the President was acting under the authority given to him by the Constitution.

The five High Court judges had ruled that the President can be sued in his personal capacity and not as the President of the Republic of Kenya and ought to have responded to the petition.

 Gatonye, who has filed 17 grounds of appeal against the judgment, however, argued that the President could not have responded to the suit because he was not even served.

“The judges did not ascertain whether the President was served. There is no evidence of service at all…

There has to be service on the person, there must be a return of service, in all the documents filed in this court, there is no evidence of return of service,” he said.

Gatonye argued that the President was condemned unheard yet they made a finding that he should have responded.

“Failure to serve proceedings is serious omission in litigation. When the court proceeded to make orders against him, it breached the right to fair trial,” he argued.

“He was not served with the process and yet the court proceeded to make such orders against him, I pray this court to set aside all orders,” he said.

 In a damning accusation of Uhuru, the High Court judges said: “In taking initiatives to amend the constitution other than through the prescribed means in the constitution, the president failed to respect, uphold and safeguard the constitution and, to that extent, he has fallen short of the leadership and integrity threshold.

“Court proceedings can be instituted against the president or a person performing the functions of the office of president during their tenure of office in respect of anything done or not done contrary to the constitution,” they ruled.

Presidential immunity

But Nyaoga criticized the High Court judgment arguing that the court framed its own issues.

“The issues forming the basis for declaration was not one of the issues that the petitioners had asked,” he said.

He maintained that the President enjoys absolute immunity and thus cannot be sued as the high court had declared.

He argued that the actions the respondents had contention about were done in his official capacity and not his personal capacity.

“If you look at the grievances, they refer to official acts of the appellant, eg the petitioners complain against gazette notice which is an official act…Article 143(2) confers the president absolute immunity and, therefore, in making that declaration the court erred in interpretation of that article,” he said.

It was his argument that the judges in issuing the said decision they repealed Article 143(2) of the constitution which gives the President absolute immunity.

“We don’t have restrictions touching on presidential immunity. The issue of presidential immunity is not unique to Kenyans most jurisdiction have that law that shield the President from being sued,” he argued.

Lawyer Kiragu Kimani on his part argued that there was no evidence that  Uhuru did not follow the constitution while setting up the BBI steering committee.