Attorney General Justin Muturi has opposed a case filed by Azimio la Umoja leadership, challenging a judicial commission to probe Shakahola deaths.
Mr Muturi argues that the case filed by Azimio's lawyer Paul Mwangi is defective for including President William Ruto as a party.
He noted that the Supreme Court had clearly stated that a sitting president cannot be sued in person. Instead, Muturi in his reply before High Court judge Lawrence Mugambi, argued that the President can only be sued through him.
"We pray that the court strikes out the second respondent in respect to the Supreme Court's judgment on the immunity of the sitting president," argued Muturi.
Azimio took the Shakahola deaths inquiry battle to President's doorstep, arguing that he has usurped powers of among others the Director of Public Prosecution, Judiciary and Parliament.
Mwangi argued that the President hijacked the criminal justice system. According to him, it is illegal for the President to appoint judges without reference to Chief Justice Martha Koome.
At the same time, he argued that the judicial inquiry is conducting a similar role as the court as the same could be done in an inquest.
"The action in constituting the Commission of Inquiry is interfering with the independence of the Judiciary under Article 161 of the Constitution which provides that 'in the exercise of judicial authority, the Judiciary shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority," argued Mwangi.
Ruto formed a judicial commission to unearth activities of the Makenzi-led Good News International Church, including persons and organisations who bear the greatest responsibility for the massacre of over 200 people in Shakahola, Kilifi.
The commission is chaired by Lady Justice Jessie Lesiit and features Lady Justice (Rtd) Mary Kasango, politician Eric Gumbo, Bishop Catherine Mutua, Jonathan Lodompui, Frank Njenga, Dr Wanyama Musiambu and Albert Musasia.
Lawyer Kioko Kilukumi is the lead counsel assisted by Vivian Janet Nyambeki and Bahati Mwamuye. Joint secretaries are Oliver Kipchumba Karori and Rachel Maina.
"The mandate of the Commission of Inquiry shall be to inquire into the matter of the deaths, torture, inhumane and degrading treatment of members and other persons linked to the Good News International Church in Kilifi County," their terms of reference reads.
They will also inquire into the legal, institutional, administrative, security, and intelligence lapses that may have contributed to the killings and recommend specific actions that should be taken against those responsible including admonition, regulatory actions, reparations, or criminal investigation.
In his supporting affidavit, Azimio leader Raila Odinga argued that the President is acting as the judge, the jury, and the executioner as his appointees are likely not to give a fair verdict.
