Linda Katiba Lobby Group; one of the parties that opposed the BBI petition at the Court of Appeal has moved back to the court seeking a review of the judgment, arguing that some parts are erroneous and favour the state.
The lobby group through one of its lawyers Morara Omoke argues that some sections of the final ruling presented to them does not match with what the judges read while delivering the ruling last Friday.
The group gave an example on the issue of whether the proposed BBI referendum should be one main question, or separate individual proposals, noting that they believe there was an error in the total tally of judges who votes for and against the issue.
"Our reading of the judgment delivered by the Court of Appeal reveals the possibility of an error in the final tally of the Judges of Appeal who voted to overturn the findings of the High Court that: Article 257(10) of the Constitution of Kenya 2010, requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people," Omoke’s letter was quoted by Nation.
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Lawyer Morara Omoke. [Photo: Courtesy]
According to Omoke, the final ruling says four judges voted to overturn the High Court’s ruling on the issue, yet according to the presentation made in the court, four judges made ruling supporting the High Court.
The final ruling indicates that Justices Hannah Okwengu, Patrick Kiage and Roselyne Nambuye upheld the High Court decision, while Court of Appeal President Justice Daniel Musinga and Justices; Fatuma Sichale, Francis Tuiyott and Gatembu Kairu overturned the High Court decision.
However, according to the lobby group, Justice Gatembu Kairu ruled in their favour. Lawyer Omoke has urged the Court of Appeal President to review Justice Kairu’s ruling specifically on the paragraph where he said: “I would qualify the declaration by the High Court that: Article 257(10) of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people by adding the words ‘subject to the nature of proposed amendment.”
The group wants the court to review and revise the ruling in order to provide clarity and avoid any future appeals on the issue.
Last week, the Court of Appeal issued a ruling upholding a High Court decision that declared BBI unconstitutional. With the ruling, it is almost certain that Kenyans will not have a referendum before heading to the polls in 2022.
