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There is a reason why section 12 of the Government Proceedings Act (Cap. 40) says all suits by or against the Government should be made by or against the Attorney-General (AG). This is because, as far as common law is concerned, the Government is not a person that can sue or be sued and therefore, to file suit against the Government in its official capacity, Parliament has modified the common law vide section 12 of the Cap 40 to provide that such suits must be filed by or brought against the AG who is the Government’s (not executive’s) legal advisor under article 156 of the Constitution and the personification of Government under section 12 of Cap 40.

Some kihereheres will start screaming that, “oh this is a Constitutional petition and Cap 40 does not, therefore, apply.” To those kihereheres, I would say two things, i.e., firstly no court has declared section 12 of Cap 40 unconstitutional and I would add that I believe it would be impossible, for any court, to declare section 12 of Cap 40 unconstitutional, secondly, if section 12 is not unconstitutional, then it regulates the way in which any suit (including a Constitutional petition) by or against the Government should be brought.

The importance of this can only be shown by the ill-fated petition attempting to divest the President of his constitutional power to appoint a judge of the superior courts. Katiba Institute brought a petition in which it believed the President was in violation of court orders by refusing to appoint 6 judges to the Court of Appeal. This means Katiba Institute had no issue with the Chief Justice (CJ) who, therefore, should not have been a party in the first place. The CJ should not have been a party because firstly, there was no cause of action against the CJ and secondly, a suit against Government should properly be brought only against the AG. Despite all this, the CJ was made a party, meaning that should the matter reach the Supreme Court, the CJ will be compromised because, come what may, she must recuse herself from that bench, but worse still, it may be impossible to convince any common Kenyan that the High Court (when it essentially attempted to divest the President’s role of appointment of judges and hand it over to the CJ) was not acting under the directions of the CJ. The CJ is now trying belatedly to remove the impression that the High Court was not acting on her instructions. However, had the High Court been clear about these issues from the beginning (as any serious court should), i.e., proper way to bring a suit against the Government, cause of action and other matters which kihereheres nowadays consider as technicalities and not worth their while, we wouldn’t be in a position where a CJ is forced to file a notice of appeal in a court which she administratively heads. If the CJ has been reduced to a mere litigant before the courts, why begrudge her the right to appeal against decisions made by those courts? You cannot have your cake and eat it!