Uhuru can only be sued after 2022 elections - Supreme Court

The issue had been raised by activist Isaac Polo Aluochier

Chief Justice and President of the Supreme Court Martha Koome (centre) and Deputy Chief Justice and Vice-President of the Supreme Court Philomena Mwilu (third left) with Supreme Court Judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Mohamed  Ibrahim, Njoki Ndung’u and William Ouko at the Supreme Court Building in Nairobi. Jeff Angote | Nation Media Group

The Supreme Court of Kenya has asserted that a sitting president is immune to civil litigation.

According to Chief Justice Martha Koome, the lower courts’ judges who found that President Kenyatta could be sued in civil disputes, erred.

“The implication of this [allowing civil suits against a sitting president] is far-reaching, and therefore calls for a very careful analysis and consideration by this court,” she said.

“The exercise of public power by the president can be challenged in a court of law by suing the Attorney-General through an action of Judicial Review or Constitutional petition,” she concluded.

On July 2, 2021 Isaac Polo Aluochier’s asked the High Court to find that civil suits can be brought against a sitting President for actions not authorised by the Constitution.

Aluochier, an activist, pegged his petition on Article 143 of the Constitution, arguing that just as the President was sued in 2017 after the General Election, he can similarly be sued for actions that do not relate to his presidential duties.

The revelation came on the same day Supreme Court judges nullified the Constitutional Amendment Bill, (2020) dubbed the Building Bridges Initiative (BBI).

The seven-judge bench which included CJ Koome, Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim, Njoki Ndung’u, Isaac Lenaola and William Ouko ruled that the quest to change Kenya’s Constitution was not procedural.

Six out of seven judges ruled that the President cannot lead a ​popular initiative to amend the Constitution.

Three judges held that President Kenyatta was a promoter of the BBI proposed amendments. Two judges said President Kenyatta was not involved. Two judges abstained from that vote.

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