Uhuru’s name struck out of appointments petition

The High Court on Tuesday ruled that criminal or civil proceedings cannot be instituted against the President over his performance of duties during his tenure in office.

Subsequently, Justice Chacha Mwita removed President Uhuru Kenyatta’s name from a case filed by activist Okiya Omtatah challenging his decision to appoint chief administrative secretaries and principal secretaries.

Although Justice Mwita did not give the reasons for striking out Mr Kenyatta’s name from the petition, he indirectly agreed to the submissions by the Attorney- General that the President is immune to any form of prosecution.

“In my considered view, the name of the President should not have been in this petition. I will provide reason in the final judgement,” he briefly ruled.

The AG, through senior litigation counsel Jennifer Gitiri, filed an application seeking the removal of the President’s name, saying it is unconstitutional to institute any proceeding against the Head of State.

Ms Gitiri told the court that Article 143(2) of the Constitution provides immunity to the President or the person performing the functions of the presidency during their tenure in office against civil proceedings in any court “in respect of anything done or not done in the exercise of their powers”.

“We submit the government is an organ entity and independent of the person it consists. The President cannot be sued as he enjoys presidential immunity,” she added.

The AG said article 156(b) of the Constitution mandates his office to represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.

Mr Gitiri said inclusion of Mr Kenyatta in the matter is unnecessary since the AG is competent to represent the action of the national government in any civil proceeding. “The petition will not suffer any prejudice if the name of President Kenyatta will be excluded in this proceeding,” she added.

The National Assembly, through lawyer Mbarak Awadh Ahmed, supported the AG’s submission adding that he has made an application seeking to challenge the jurisdiction of the court to hear Mr Omtatah’s petition.