President Uhuru Kenya has urged the Court of Appeal to nullify orders issued against him, saying he cannot be sued while in office.
Through his lawyers, Uhuru told the 7-judge appellate court listened to the Building Bridges Initiative (BBI) appeal that even though orders were issued against him, he was never served with any material.
Uhuru says the orders and declarations made against him by the High Court in March, violated his constitutional immunity against civil proceedings while in office. He is represented by lawyers Waweru Gatonye, Mohammed Nyaoga and Kiragu Kimani.
The lawyers argued that like any other Kenyan, the President was entitled to be informed of the allegations against him, to be given an opportunity to respond and participate in the trial.
The president was sued in his private capacity in one of the petitions filed by activist Isaac Aluoch Polo. He was sued together with the Attorney General and the IEBC.
Making his submission, Gatonye said the President as Head of Government was entitled to representation by the AG in the proceedings.
He said the High Court proceeded on the basis the AG was representing the President but in the judgement held that Uhuru should have responded to the petition in person or through his legal rep.
Surprisingly, they didn’t ascertain whether he had been served,” he added.
The lawyers argued that the court condemned the president unheard of as he was never served in person with the petition.
Gatonye said failure to serve any party sued in a case constituted a serious omission in litigation and when the court proceeded to make orders and declarations against the President it breached his right to fair trial.
“I pray that this court sets aside all the orders and all the declarations adverse to the President in his personal capacity,” he said.
Nyaoga said the president was protected by the constitution from proceedings for actions and that some of the acts for which Uhuru had been sued were acts performed in his official capacity.
