Justice Hannah Okwengu has said the president does not have the authority to promote a popular initiative.
Reading her judgment at the Court of Appeal, Okwengu said though the drafting of the BBI bill was done by the steering committee, it was an Executive drive.
She said the amendment bill should be a process initiated by a voter.
"The popular initiative was meant for the people, not their representative. The promoter must be an ordinary citizen, not a politician," she said.
However, Okwengu noted that the president cannot be faulted for initiating a BBI process through the steering committee.
"The mandate of the BBI steering committee was not to implement the constitutional changes. The initiative of BBI was not different from the peace accord signed between Former president Mwai Kibaki and Raila Odinga in 2008," she said.
"It was well to appoint the steering committee and he ought to have engaged his party."
On presidential immunity, Okwengu upheld that the high court president can be subjected to civil proceedings.
"I agree with the majority that the BBI draft can't be subjected to a referendum because it violated the constitution, " Justice Okwengu said.
"No matter the outcome this matter everyone is a winner because the constitution has won."
