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The High Court has outlawed the Supreme Court’s decision to prevent lawyers, petitioners and respondents of a presidential election petition from making public comments about the case.

Justice Mugure Thande on Wednesday said that the Supreme Court (Presidential Election Petition Amendment Rules) 2022 did not have public participation.

Chief Justice Martha Koome’s request for a stay of execution of the Judgment pending the filing of an appeal has also been declined.

The rules had been introduced by CJ Koome to gag lawyers and litigants involved in any presidential election petition.

The amendments were published in the Kenya Gazette months before the General Election.

“Upon commencement of the hearing of the petition by the court, litigants, their advocates and advocates’ agents shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition in any manner that would prejudice or impede court proceedings, until judgment is delivered,” the amended rules stated.

Many lawyers expressed displeasure with the new rules, with the Law Society of Kenya describing them as “drastic, unjustifiable and ambiguous”.

“We are writing a letter to CJ asking her to recall the amendment with immediate effect to allow for public participation. She should have presented the rules to LSK and other stakeholders to look at them and make comments before they were gazetted,” said LSK president Eric Theuri.

Advocates argued that the new rules were against the freedom of expression as stipulated in the Constitution.

They defended that discussions or remarks made by advocates cannot affect the judgement of a court.

“The amendment, though intended to protect the integrity of the proceedings before the Supreme Court, is something that cannot be supported in a democratic society that cherishes the constitutional rights and freedom of expression,” Theuri said.

The rule seems to have emanated from the hearing of the BBI case, in which CJ Martha Koome reprimanded top lawyers for their public comments on the case.

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