Court of Appeal judge Justice Patrick Kiage's tough cross-examination has seen lawyers across the divide fumble and contradict each other while presenting their cases at the Building Bridges Initiative (BBI) hearing.
Kiage is one of the seven judges listening to the case alongside Appellate President Justice Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott.
On the first day of the hearing, Wednesday, June 30 - Kiage interrogated the appellants' lawyers; those representing President Uhuru Kenyatta, ODM leader Raila Odinga, the BBI Secretariat and the IEBC.
Kiage asked former Attorney General Githu Muigai to explain why High Court judges deviated from using a past ruling in one of the cases Muigai quoted. The ex-AG skipped the question and passed it on to lawyer Eric Gumbo.
"What specific reasons did the judges give for not following Isaiah Biwott case? It's there in the judgement," Kiage posed.
Gumbo was still at pains to answer before the judge ultimately came to his rescue.
"Mr Gumbo, actually, they gave quite some reasons from paragraphs seven, 11, going forward but it's okay - we will find them ourselves," the judge replied.
Kiage also cornered Uhuru's lawyer Senior Counsel Mohammed Nyaoga on whether the President can be sued in his personal capacity for contravening the law. The judge created a hypothetical situation where the President may be accused of killing a neighbour's dog and if that warranted litigation.
Nyaoga - who had argued that the five High Court judges erred in ruling that Uhuru can be sued in a personal capacity - argued that the head of state enjoyed absolute personal immunity. However, he failed to explain why and forwarded the question to his colleague, Kiragu Kimani.
Kiragu contradicted Nyaoga's sentiments, stating that Uhuru can be sued in such scenarios. On Thursday, July 1, Kiage cross-examined Linda Katiba lawyer and plaintiff Nelson Havi - the Law Society of Kenya President.
Havi presented dissenting views on behalf of activists David Ndii and Jerotich Sei who oppose the BBI appeal. In his presentation, Havi argued that the president must abdicate if he wanted to engage in the affairs of lesser mortals.
"The president is not a mere mortal, but a superior. The president cannot make a direct appeal to the people & join them in petitioning Parliament," Havi argued that Uhuru was the promoter of the BBI initiative.
The judge, however, threw a spanner in the works when he posed different scenarios where the right of the president to exercise powers given to ordinary Kenyans would be tested.
"Suppose the President was elected as an independent and Parliament blocked his policies. Do you mean he cannot go to the people directly and petition Parliament, say through picketing or a demonstration?" the Justice pondered.
The LSK President appeared off-guard at the question, even quoting Designated Survivor, a Netflix series to support his arguments - hitherto premised on case law and legal scholarly papers.
"The idea of an independent President may or may not happen and has been explored in the American series, Designated Survivor but for Kenya, there is a snowball's chance in hell of that happening. If the President is not happy with Parliament, he would have to resign," Havi answered.
In his conclusion, the LSK boss quoted Justice Johann Kriegler of the Kriegler Commission - formed in 2008 to look into the controversial 2007 General election that caused the Post Election Violence (PEV).
"IEBC, Parliament must do their jobs. My Lords, let the court do its job. I plead with you most favourably to dismiss the appeal and affirm the decision made by the High Court. You owe this to the people of Kenya in tandem with the oath you took in accordance with the preamble," Haji urged the judges.
Kiage faulted Havi's closing remark and asked, "Your last exhortation seems to suggest that if we don't agree with you we are not honouring our oath, yet we can go either way."
Havi responded humbly stating that he asked them to do it how they do it as they are better qualified and he is too junior to do the judge's job.
Justice Patrick Kiage Profile
Kiage stands out among the other six judges as he was a public prosecutor on a bench which has few courtroom lawyers. The cross-examination skills may explain his probing style which many lawyers would rather avoid.
He attended Alliance High School, the University of Nairobi (Law Degree) and the Kenya School of Law for a Diploma in Legal Practice. He also holds a Master of Laws Degree in Public Service Law from New York University where he majored in Human Rights and Criminal Justice.
In 1993, he was admitted to the Roll of Advocates and worked as a criminal defence lawyer. He also served on the National Council of the Law Society of Kenya.
In 2007, he was appointed as a Special Prosecuting Counsel in the Office of the Director of Public Prosecutions (ODPP). He was in charge of county Affairs and Regulatory Prosecutions until 2012 when he was appointed to the Court of Appeal.
