- Justice Musinga asked parties if they would be comfortable if some of the seven judges could hear the matter virtually.
- Lawyers from both sides were all of the opinion that the judges should be present physically in court.
A seven-judge bench will sit for four consecutive days to hear the BBI appeal at the end of this month.
Court of Appeal president Daniel Musinga held a case conference on Wednesday and said the hearing will commence on June 29 and end on July 2.
After the hearing, the judges will give parties a date when they will deliver the judgment of the appeal that seeks to reverse the High Court ruling that halted constitutional changes through the Building Bridges Initiative.
Even though the judges had raised concerns about ambiguity of the hearings that may take long, they agreed to hear the matter in a physical court.
Justice Musinga asked parties if they would be comfortable for some of the seven judges to hear the matter virtually. Lawyers from both sides were all of the opinion that the judges be present physically in court.
Some lawyers said there are Kenyans who would perceive the judges sitting virtually in their homes as being compromised.
They told the court that due to the sensitivity of the matter, all judges should appear in court in person to enhance public confidence.
Each of the parties will have two hours to make submissions before the judges either in support of or opposition to the appeal. However, Justice Musinga said the court will be at liberty to limit the time to avoid repetition.
The Attorney General, the BBI secretariat, the Independent Electoral and Boundaries Commission, President Uhuru Kenyatta and ODM leader Raila Odinga are all expected to file their appeals within seven days and the respondents will respond in 14 days.
The court said all written submissions will be limited to 40 pages for each party and oral submissions will be two hours for each.
Lawyer Dudley Ochiel, representing the Katiba Institute, had earlier asked the court to give them 14 days to file responses, claiming that they have so far been served with 9,000 pages of documents by the appellants.
But lawyer Paul Mwangi for the BBI taskforce opposed the move, saying even though the documents are huge, they are not new as parties have interacted with them at the High Court.
The respondents had asked the court to be fair on the issue of time, with lawyer Muthomi Thiankolu claiming that the appellants filed the appeal close to 20 days since the judgment was issued by the High Court, thus having an upper hand over them.
Lawyers George Oraro for the AG asked the court to allow them to file 30 pages, the same as lawyer Orengo for ODM leader Raila Odinga.
However, Justice Musinga suggested to the parties that the submissions be about 20-25 pages but in final directions said parties to serve 40 pages.
The judges also withdrew all the applications for stay that had been filed by the state as had been agreed by parties so that they can deal with the substantive appeal.
Justice Musinga has also cautioned parties in the BBI case not to attack the court. He was responding to an issue raised in court by Ochiel, who expressed concern about President Kenyatta’s Madaraka Day speech where he told the Judiciary to consider not just the letter of the Constitution but the spirit as well.
Ochiel asked the court to rule on the matter because it was a contempt of court for the President, a party to the case, to speak about an issue before court in public.
He was addressing the three-judge bench on Wednesday that was giving directions on how parties will proceed with the matter. Ochiel said the President made remarks that undermined public confidence in the Judiciary.
Justice Musinga, who presided over the bench alongside Justices Roselyne Nambuye and Hannah Okwengu, said he wanted the proceedings of the BBI case to be conducted with the dignity required.
"Let's be respectful with each other, let us not begin to prosecute this matter in the media," the judge said.
Justice Musinga asked parties to allow the court to make a fair decision without attacks and comments by all concerned.
The Thirdway Alliance and David Ndii wrote letters to Justice Musinga last week asking for a seven-judge bench, saying the matter in court was very complex.
The three-judge bench gave interim orders to the IEBC, allowing them to continue discharging their functions but limited to that alone and not the referendum.
This means the commission can conduct by-elections but not anything to do with a referendum.
Prof Githu Muigai, appearing for the IEBC, had asked the court to issue them with conservatory orders to allow them to carry out their functions.
Lawyer Elias Mutuma for Thirdway Alliance had accused the IEBC of forum shopping, saying they had been given interim orders by the High Court and had not disclosed that information to court.
Muigai denied the claims telling court the orders had since expired.
Lawyer Thiankolu said the IEBC should withdraw the matter at the High Court before asking for interim orders in this court on the issue of quorum.
He further said if the court allowed their prayer then the order should be so specific that it's not for a referendum but by-elections.