The Supreme Court has today declined to give its views in two advisory opinion matters relating to BBI that were filed by Makueni Governor Kivutha Kibwana and two county assemblies.
Nandi and Kericho County Assemblies were the first to move to the apex court last year seeking an opinion on the constitutionality of BBI and later Kibwana filed a separate advisory opinion.
In the ruling, Acting CJ Philomena Mwilu, Justices Ibrahim Mohammed, Njoki Ndungu, Smokin Wanjala and Isaac Lenaola ruled that they cannot give an opinion on a matter that is still pending determination before the court.
The court was referring to the consolidated petition that is pending a hearing on Tuesday at the High Court before a five-judge bench.
The judges further ruled that even though they have jurisdiction to render an advisory opinion, they would not exercise their discretion in that matter.
“We do not see how the High Court can determine the issues before it without venturing into similar questions now pending before us in the two references,” the court ruled.
The court also ruled that given the timing of the proceedings before the High Court, there is a distinct possibility that the advisory opinion and declarations from the Supreme Court and High Court respectively could be issued at the same time.
“Such a scenario is likely to cause confusion and anxiety in the public mind, not to mention the potential threat, to the principles of certainty and finality in judicial pronouncements,” the court ruled.