A report by Business Daily on Friday, December 18, indicated that the High Court ruled that the Head of State can be sued for acts of commission and omission.
The court however noted that the cases touching on the presidency could be instituted through the office of the Attorney General.
The three-judge bench consisting of judges George Dulu, William Musyoka and James Wakiaga further noted that the immunity offered to the President the constitution did not cover all aspects.
“Although there is immunity for the president from prosecution, the same does not bar prosecution of civil or constitutional cases that challenge the powers of the president,” ruled the judges.
A lawyer told kenyagist.com that if the public is dissatisfied by the actions or inaction of the head of state, they can sue the President but they have to name the Attorney General as a respondent.
“The president can be mentioned as a respondent but remember the Attorney General’s team is the one to defend that suit and not the president,” he explained.
The ruling comes in a case in where Katiba Institute sued the head of state personally for not swearing in 40 judges.
The judges noted that the move by Katiba Institute was not fatal and that the group deserved a chance to be heard in the case.
The bench also threw out a case by the office of the Attorney General that had objected to the case.
“To that extent, it can be said that there was a misjoinder of the president he ought not to have been named as or made a party in this proceeding,” stated the judges.
The Presidency and the Judiciary have been at loggerheads after Uhuru failed to swear in judges recommended by the Judicial Service Commission.
The president declined to gazette the 41 jurists presented to him by JSC, four months after he received the list of nominees, citing integrity questions in some of the nominees.
The CJ has publicly voiced his frustrations about how the Judiciary has been alienated by the executive to an extent of its budget being slashed despite a backlog of cases.