There was confusion after Attorney General Paul Kihara on Tuesday, May 18, withdrew a petition he had filed at the High Court over the recent Building Bridges Initiative (BBI) ruling.
Kihara had on Friday last week filed stay orders at the High Court - seeking to freeze the ruling declaring the BBI amendment bill null and void.
The move initially drew suspicion as such an appellate request ought to be filed at a higher court, in this case at the Court of Appeal since the ruling was made by the High Court.
"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," Senior Counsel Ahmednasir Abdullahi stated.
In the notice dated Tuesday, May 18, the AG explained that he was looking to file the petition at the Court of Appeal. No reasons were given for the earlier request.
"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," read the notice in part.
Speaking to Kenyans, a lawyer explained that the AG opted to withdraw the stay orders application and file it at the Court of Appeal since it would be challenging for him to get an approval from the same bench that ruled on the matter.
"Once a court decides on a matter, it becomes Functus officio, it cannot do anything about it. What AGwanted 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 explained.
Kihara, through the Solicitor General Kennedy Ogeto, filed the stay orders at the Court of Appeal that have since been certified urgent by a 5-judge bench.
The court directed the involved parties to submit their written submissions by close of business this Thursday, May 20.
“The court will give its ruling based on the written material placed before it by email on Wednesday, May 26, 2021,” the court directed.
In the application before the bench lead by Justice Mumbi Ngugi, Kihara argued that if the stay orders are not granted then, they will suffer prejudice.
