Kenyans were left confused after Attorney General Paul Kihara on Tuesday, May 18, withdrew a petition he had filed at the High Court over the recent ruling that declared Building Bridges Initiative (BBI) null and void.
The AG had on Friday last week filed stay orders at the High Court in a bid to freeze the ruling pending the hearing and determination of an appeal.
The move was criticized by some legal experts as such an appellate request ought to be filed at a higher court, in this case at the Court of Appeal since the ruling was made by the High Court.
“Very interesting that the Attorney General seeks stay of the BBI judgment in the High Court and NOT the Court of Appeal…that sends a potent and powerful message that AG doesn’t see the matter as one of extreme urgency,” Senior Counsel Ahmednasir Abdullahi observed. The AG appears to have acted in light of these concerns in the notice dated Tuesday, May 18, where he explained that he was looking to file the petition at the Court of Appeal.
5-Judge bench that declared BBI illegal
“Take notice that the Hon 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,” read the notice in part.
A legal expert well-versed with the procedure opined that “Once a court decides on a matter, it becomes Functus officio, it cannot do anything about it. What AG wanted was to return to the same bench to get a stay.
“That can also be done by the Court of appeal. When you appeal your case, you also pray for a stay. That is to prevent orders from the lower from taking effect until the appeal is heard and determined. The challenge with the High Court is that once it has decided, it becomes a functus officio.”
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