AG withdraws application for stay of High Court ruling,files matter at Court of Appeal

Attorney General Paul Kihara on Tuesday, May 18, withdrew a petition he had filed at the High Court over the ruling on the recent Building Bridges Initiative (BBI) thereby creating confusion regarding the matter. 

Last week on Friday, Kihara had filed stay orders at the High Court in a bid to block the implementation of the ruling declaring the BBI amendment Bill unconstitutional .

Referring to the move, Senior Counsel Ahmednasir Abdullahi stated, "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." 

According to the AG, the plan was to file the petition at the Court of Appeal. However, in the notice there were no reasons given for the earlier request. 

The notice read in part, "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." 

A certain lawyer explained to a local publication that it would be challenging for the AG to get an approval from the same bench that ruled on the matter and that is why he opted to withdraw the stay orders application and file it at the Court of Appeal. 

The lawyer said, "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," he added.

Kihara filed the stay orders at the Court of Appeal through the Solicitor General Kennedy Ogeto. The orders have since been certified urgent by a 5-judge bench.

The court's directive requires involved parties to submit their written submissions by close of business this Thursday, May 20.

 

The court directed, “The court will give its ruling based on the written material placed before it by email on Wednesday, May 26, 2021.”

The stay orders will suffer prejudice if they are not granted then, Kihara argued in the application before the bench lead by Justice Mumbi Ngugi.