The High Court Tuesday ruled that a criminal or civil proceeding cannot be instituted against a President over performance of his duties during his tenure.
Subsequently, Justice Chacha Mwita struck out 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 divulge the reasons for striking out President Kenyatta’s name from the petition, he indirectly agreed to the submissions by the Attorney-General (AG) 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 counsel Jennifer Gitiri, filed an application seeking the removal of President Kenyatta’s name in the matter arguing that it is unconstitutional to institute any proceeding against the Head of the State.
“We submit that the president cannot be sued as he enjoys presidential immunity,” she added.
Ms Gitiri told Justice Chacha that the inclusion of President Kenyatta in the matter is unnecessary since 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 associated himself to 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.
A youth group, enjoined as interested party told Justice Mwita that under international law, a sitting President, Heads of governments and Ambassadors are immune to any form of suit.
Through lawyer Danson Mungatana, the group told Justice Mwita that President Kenyatta cannot be dragged to court for any of his action as long as he remains in the office.
In his response, Mr Omtatah said that the President cannot hide under the guise of the doctrine of immunity to commit impunity.
In the case, Mr Omtatah sued President Kenyatta, the Public Service Commission, the AG and the Speaker of the National Assembly over the Cabinet appointment.