Day one sets tone for rough battle as top lawyers square up

Lawyer James Orengo goes through his documents during the hearing of BBI at the Appellate court sitting in Nairobi on June 29, 2021. [Denish Ochieng, Standard]

It was a day like no other for the Court of Appeal as the country’s attention was glued to seven judges and a host of top lawyers as the Building Bridges Initiative case started.

At exactly 9.10am, judges Daniel Musinga, Roseline Nambuye, Hannah Okwengu, Gatembu Kairu, Patrick Kiage, Fatuma Sichale and Francis Tuiyot walked into a tent erected at the Chief Justice’s courtyard to accommodate the large teams in the case.

Not that the second-highest court has not handled big cases before, but this one is attracting a lot of attention due to its high stakes and political consequences it has on next year’s General Election.

A look at the court would have made one imagine that the more than 70 lawyers had moved their offices. 

Before the main battle, some lawyers raised preliminary issues that forced the judges to briefly retreat to write a ruling.

Court of Appeal assistant Arnold Mutisya goes through files during the hearing of BBI at the Appellate court sitting in Nairobi on June 29, 2021. [Denish Ochieng, Standard]

Lawyer Elias Mutuma representing Thirdway Alliance chairman Miruru Waweru set the ball rolling when he applied that additional evidence filed by the BBI secretariat and the Independent Electoral and Boundaries Commission be expunged from the records.

“They are purporting to respond to our application to adduce additional evidence but they have introduced new things that are not based on what we supplied. We are asking that their affidavits be expunged from the court records,” said Mutuma.

According to the lawyer, IEBC had introduced a gazette notice as evidence that there was an ongoing continuous voter registration while the BBI team had filed additional evidence on the joint parliamentary report on the Constitution of Kenya (Amendment) Bill, 2020.

Mutuma argued that the evidence was being sneaked at the last moment to improve their case.

But lawyers Otiende Amollo for the BBI and Eric Gumbo for IEBC argued that the new evidence was in compliance with a decision of the court allowing them to file further affidavits in response to the reports from Parliament.

Lawyers Otiende Amollo and Kithure Kindiki at the Court of Appeall, Nairobi, on June 29, 2021. [Denish Ochieng, Standard]

The judges dismissed Mutuma’s application, stating that it will be up to them to consider all evidence presented before court.

“Having given the parties permission to file additional report from Parliament, the question of the other parties filing additional evidence will be determined in our judgment. We, therefore, decline the application to strike out the affidavits with the additional evidence,” ruled the judges.

As the proceedings began, the hard, serious and unassuming faces of the learned friends were enough evidence that this would be a rough battle.

But the proceedings did not lack some light moments as all the parties giggled and laughed behind their face masks.

Lawyer Elisha Ongoya at one time found himself in an awkward position when he could not remember the name of his client, and had to refer to the records to get it right.

The appellants, who include President Uhuru Kenyatta, former premier Raila Odinga, BBI secretariat, Attorney General and IEBC are represented by experienced lawyers like Amollo, Senator James Orengo, Gatonye Waweru, Paul Mwangi, former Attorney General Githu Muigai and Mohammed Nyaoga. The defending parties have assembled a team that includes Narc-Kenya leader Martha Karua, John Khaminwa, Charles Kanjama and Senator Kindiki Kithure.