The principal legal adviser to the president Attorney General Kihara Kariuki who collected the cream of lawyers in the BBI appeal has once again made it clear that he will be moving to the Supreme Court to challenge the Court of Appeal ruling. Paul Kihara Kariuki was subjected to criticism after the government lost a series of legal battles under his watch, with young lawyer Esther Ang'awa proposing yesterday in a tweet that the LSK should consider deregistering him together with Solicitor General Kennedy Ogeto from the bar.
However, in a document that was sent to the media, AG Kihara announced that the court of Appeal erred in three fundamental questions. According to him the question of the applicability of the basic structure doctrine was not fully analysed and that it can not be fully be applicable in Kenya as it is in India for example. In her ruling, justice Fatuma Sichale said that there is no provision in the constitution that is explicitly an amendable.
Secondly, AG Kihara is set to challenge the Court ruling on the popular initiative procedures, seemingly agreeing with justice Fatuma Sichale's analysis that the president being a citizen under public law can initiate any constitutional change. According to both, it is not easy to know whether the president is acting in his citizen capacity or as a president and that the procedures of initiating a popular initiative are not clear.
On the third count, AG Kihara will challenge justice Gatembu Kairu and Daniel Musinga's verdicts that the president can be sued in his personal capacity saying he is enjoying his presidential immunity.
A nother battle of titans reminiscing the 2017 presidential election petition at the Supreme Court where creme de la creme lawyers including Mutakha Kangu, James Orengo, Okongo Mogeni, Paul Mwite, PLO Lumumba, Githu Muigai, Otiende Amollo, Paul Kinyanjui and others lined up in defense.
Former prime minister Raila Odinga's team however indicated that their primary focus after the failure of BBI is the 2022 general elections and not an appeal at the Supreme Court.
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