The High Court Thursday ruled that the President can be sued for his acts or omissions.
However, a bench of three judges said such cases cannot be instituted personally but through the Attorney General’s office.
“Although there is immunity for the President from prosecution, the same does not bar prosecution of civil or constitutional cases which challenge the power of the president,” Justices George Dulu, William Musyoka and James Wakiaga said.
Article 143 of the constitution shields the President from criminal and civil proceedings while in office, in respect of anything done or not done in the exercise of his powers.
The judges said although Katiba Institute has sued President Kenyatta personally for refusing to swear in 40 judges as recommended by Judicial Service Commission (JSC) last year, the move was not fatal and the organisation should be given a chance to argue its case.
For that matter, the judges dismissed an objection filed by Attorney General, seeking for the termination of 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 proceedings,” the court ruled.
There has been an impasse between Executive and Judiciary over the appointment of the 40 judges as recommended by JSC. They were 41 but one of them died in a road accident recently.