President Uhuru Kenyatta breached the law when he used public resources, including funds, to start a popular initiative for amending the Constitution, a court has heard.

This even as justice John Mativo, in a span of two months, becomes the second judge, after his counterpart Weldon Korir, to disqualify himself from a case seeking to declare Building Bridges Initiative illegal.


Korir recused on January 27, 2020. Petitioner Okiya Omtatah and interested parties – MUHURI and KI – had requested the empanelment of an uneven number of judges to hear the case. However, Korir refused, saying he had declined to a similar request in a case filed by Thirdway Alliance Party leader Ekuro Aukot in 2018, and he was unlikely to change his mind.

Judge Korir quits BBI case

Korir passed Omtatah’s case to Mativo, who on March 11, 2020, refused to proceed with an adjudication on grounds he had issued a judgment allowing BBI to proceed.  On March 4, 2020, Mativo dismissed Aukot’s petition, which intended to stop BBI.

Mativo, sitting at Milimani Law Courts, recused by ruling: “Having heard petition 451 of 2018, which involves substantially similar issues — and having expressed my self substantively in the issues I determined in the said petition — it is only fair, and just that this petition be heard by a different judge. I direct this matter be mentioned before Nyamwea. J on April 29, 2020, for directions.”

Different prayers

But the prayers in Aukot’s petition are different from Omtatah’s, the court heard.

“The previous (Aukot’s) matter was filed in 2018, just after the BBI taskforce had been established. And now we are in 2020. A lot of factual circumstances have changed,” Christine Nkonge, the KI and MUHURI lawyer, said.

Nkonge, the KI Executive Director, said: “The first gazette notice creating BBI and the second extending its term have slightly changed. There are distinct grounds, and new issues can be sustained for determination by this court.”

Activist Okiya Omtatah, Katiba Institute (KI) Executive Director Christine Nkoge, KI's Ruth Nyaberi and MUHURI chairman Khelef Khalifa at Milimani Law Courts.

Activist Okiya Omtatah, Katiba Institute (KI) Executive Director Christine Nkonge, KI’s litigation advocate Ruth Nyaberi and MUHURI chairman Khelef Khalifa at Milimani Law Courts. Photo © 2020 Ernest Cornel.

Omtatah questioned the legality of BBI, whose proponents say, will result in alteration of the executive structure through a referendum.

After the disputed 2017 presidential elections, the main protagonists — Uhuru and former Premier Raila Odinga — reached a truce on March 9, 2018, forming BBI – a political game plan critics say will hinge politicians to power and create more posts for them.

Omtatah said Uhuru is illegally funding BBI using public money. The activist had a bill to change the constitution through a referendum, which came before BBI, but has not received state support, including funding.

“It is an act of discrimination within the meaning of Article 27 of the Constitution for the President or any other public officer to use public resources to initiate and drive a popular initiative while an ordinary voter who wishes to amend the Constitution through a popular initiative, must rely on his resources. This is one of the questions that this court must answer,” Omtatah said in court.

BBI is illegal – suit