At midday, the High Court certified as urgent an application that the AG, through Solicitor General Kennedy Ogeto, had filed on Monday pleading for a stay of Thursday’s judgement, pending appeal.
The judges also directed the AG to furnish the other parties in the case with copies of his written arguments by Thursday to give them time to file their responses by the end of day on Friday.
The AG appeared to be making headway in his attempt to restart the constitutional review through the Building Bridges Initiative (BBI).
Four hours later, however, Deputy Chief State Counsel Emmanuel Bitta wrote to the High Court’s deputy registrar, indicating that the AG had abandoned the application for stay.
Mr Bitta, who also represented the AG during the hearing of the case, said the AG had resolved to pursue the same relief – suspending implementation of the judgment – at the Court of Appeal.
Ruling on AG’s application
“Take notice that the Attorney-General hereby withdraws his Notice of Motion Application dated May 14, 2021 as he is desirous of invoking the concurrent jurisdiction of the Court of Appeal to seek similar reliefs,” reads the letter by Mr Bitta.
The five-judge High Court bench comprising of justices Joel Ngugi, George Odunga, Chacha Mwita, Teresiah Matheka and Jairus Ngaah had slated its ruling on the AG’s application for Wednesday next week.
In urging the court to grant him stay orders, the AG indicated that failure to do that would subject the State and Kenyans at large to irreparable harm and the intended appeal would be rendered nugatory.
He also argued that the eight petitioners would not suffer any prejudice in the event that the court suspends implementation of the judgment so that he could exercise the right of appeal.
The AG’s office did not issue any further statement explaining its turnaround, even as observers pointed to the fact that a Wednesday ruling would have likely delayed the AG’s urgent search for justice.
Legal experts have observed that a determination of the appeal could be delayed by the shortage of judges and backlog of cases at the appellate court. The workload and staff shortage has seen less urgent cases slated for hearing as far as 2023.
According to lawyers Ahmednasir Abdullahi, Kamotho Njenga, Waikwa Wanyoike and Dudley Ochiel, the only way the BBI case can be salvaged is to have it certified as extremely urgent, which will see it heard and determined on a priority basis.
The appellate court currently has 13 judges instead of 30, and as at the end of the last financial year there were 7,598 pending cases.
The process of appeal begins with filing a notice of appeal and, among the documents that accompany the substantive appeal is the disputed judgment and typed proceedings of the trial court. Delay mostly occurs in obtaining the typed proceedings, which often takes more than one month.
“When fast-tracked and without delays, the hearing and determination of the appeal will take three to four months. That goes to the month of August, and the referendum cannot be held less than one year to the General Election. The court can accelerate the case, but people will have suspicion that the government is pushing the judges,” said Mr Abdullahi.
He added that in deciding whether to expedite the hearing and determination of the case, the judges will also be dealing with a judicial stigma and reputational risk.
“They do not want to be seen like they are the people who scuttled the BBI or allowed a process that had been declared illegal,” he said.
Lawyer Kamotho Njenga noted that if President Uhuru Kenyatta immediately proceeds to swear in the 11 judges, whose appointments to the Court of Appeal have been pending since July 2019, the BBI appeal can be concluded faster without the court appearing to favour the case.
Expedite BBI hearing
“In view of the multiple infractions afflicting the BBI initiative, an application for stay of the High Court decision has remote chances of success. Needless to state, the intended appeal by the Attorney-General and the Secretariat is weak at best and worth abandonment,” said Mr Njenga.
He stated that considering the situation at the court, without special treatment, the earliest the BBI case can be determined is 2023.
Lawyer Waikwa Wanyoike said if the Court of Appeal does not privilege the BBI case, it will take a minimum of three years for it to be fully determined.
“It would be unfair for the Court of Appeal to expedite the BBI hearing. The reason as to why there is such a significant backlog at the court is the President’s failure to appoint the 11 new judges. Unlike election matters that have a strict constitutional adjudication deadline, BBI is a regular matter that must take its rightful place in the cue,” he said.
He added that the chances of the BBI surviving at the Court of Appeal are minimal.
“The Court of appeal would have to reverse all the findings that the High Court made. Even if the Appeal or Supreme Court upholds only one of the High Court’s findings, it would mean that BBI is unconstitutional and cannot go to a referendum. It is also impossible to reverse most of the findings because they were based on uncontradicted facts,” stated Mr Wanyoike.