• Judge Musinga will preside over the case that will be heard from Tuesday next week. The other judges include Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuyoitt.
• Tuyoitt is the only one among the appeal judges who has was recently appointed by President Uhuru Kenyatta.
Image: KENYA JUDICIARY
Court of Appeal President Daniel Musinga has constituted a seven-judge bench to hear the BBI appeal.
Judge Musinga will preside over the case that will be heard from Tuesday next week.
The other judges include Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuyoitt.
Tuyoitt is the only one among the appeal judges who has was recently appointed by President Uhuru Kenyatta.
The seven are expected to sit next Tuesday and begin hearing submissions by parties in the BBI appeal.
The case will begin on Tuesday and conclude on Friday.
The bench will then retreat to write a judgement on whether to uphold the High Court orders that stopped BBI or set them aside.
On Monday a three-judge will be constituted to hear the application that was filed by the AG this week that is seeking to strike out Lawyer Charles Kanjama's BBI appeal.
The court will hear that application on Monday before the seven-judge bench as they begin their hearing on Tuesday.
Earlier this month, President Uhuru Kenyatta and ODM boss Raila Odinga launched a legal battle to salvage the BBI process, citing 36 grounds for the Court of Appeal to declare it constitutional.
The duo gave a blow-by-blow account of why the judges should overturn a High Court ruling that declared the BBI unconstitutional, null and void.
The Independent Electoral and Boundaries Commission had also lodged a separate appeal.
The agency wants the Appeal Court to annul the High Court declaration that the three-member commission does not have a quorum.
Uhuru had argued that the High Court decision that quashed the BBI process risks slowing development and quest for inclusive politics. He urged the Judiciary to reconsider its stance on the BBI.
The President has outlined 17 grounds to have the ruling reversed. On some of the grounds, he argues that the judges made a mistake in making declarations with far-reaching consequences about him despite the fact that he was not a party to the proceedings.
The High Court faulted him for his involvement in the BBI Bill.
Uhuru is also battling a ruling that declared him guilty of violating Chapter 6 of the Constitution on integrity by initiating and promoting a constitutional amendment process under Article 257 which is outside his purview.
The President decided to hire a private lawyer, Waweru Gatonye, to fight sections of the High Court judgment that adversely affected him as a person.
Among the arguments, Uhuru, through Gatonye, says the five-judge bench erred in law and fact by failing to adopt a holistic and contextual interpretation of constitutional provisions.
These provisions, he says, concern the powers and exercise of presidential authority to meet constitutional aspirations and values.
The President has also appealed against the findings by the judges that the President of the Republic of Kenya can be sued in a civil court.
He argues the judgment should be suspended because the judges failed to appreciate the scope and extent of the constitutional doctrine of presidential immunity granted by Article 143.
Raila, who is being represented by Siaya Senator James Orengo and Paul Mwangi, has raised 19 grounds in a joint appeal with the BBI secretariat.
Raila and the BBI secretariat argue, among other issues, that the High Court judges erred in their finding that the basic structure in eternity clauses and un-amenability doctrines are applicable under the Constitution.
They also argue the judges erred in fact their findings that the Constitution of Kenya (Amendment) Bill, 2020, was promoted by the President.
Raila argued the judges erred by disregarding the evidence pertaining to the BBI Secretariat's role as the promoters of the BBI Bill.
The former prime minister argued the judges preempted and usurped the people's sovereign power exercised at a referendum.
The people's mandate, Raila said, includes determining the merits, process and propriety of establishing the number and distribution of constituencies under the Constitution.
Attorney-General Kihara Kariuki has raised 31 grounds of appeal.
Through lawyers George Oraro and Ken Ogeto, he argues that the judges erred in law by finding the administrative procedures developed by the IEBC were formulated without public participation.
This finding, they say, is contrary to the evidence on record and the applicable law regarding administrative procedures as being distinct from statutory instruments.
The AG also argued the judges failed to appreciate and consider the BBI bill arose out of a proposal by the people through a consultative process.