A three-judge bench presiding over the case challenging Rigathi Gachagua’s ouster as Deputy President, comprising Justices Eric Ogola, Anthony Mrima, and Freda Mugambi, has refused to recuse itself from the proceedings.
Justice Eric Ogola ruled that the applicant’s request for the judges to recuse themselves has been disallowed.
However, the petitioners were granted leave to file and serve an amended petition, if need be, within five days of this order.
In view of the nature of the pending applications for conservatory orders and those seeking to discharge the orders, Ogola said that the applications seeking to discharge, view and set aside the orders shall be deemed as responses to the applications for conservatory orders.
“Parties are at liberty to file and serve any responses and all further responses to either of the applications together with skeleton submissions within two days of this court. Leave for appeal is hereby granted,” Ogola ruled.
The said applications are set for hearing on Tuesday, October 29, at 10:00am at Milimani Law courts.
Judges Accused of Bias
Gachagua’s legal team had requested the bench, which was handling an application filed by Solicitor General, Shadrack Mose, seeking to set aside orders blocking Prof. Kithure Kindiki from assuming office, to disqualify itself.
They accused the bench, led by Judge Eric Ogola, of bias and prejudice, questioning its ability to deliver a fair judgment.
Lawyer Ndegwa Njiru argued that the perception of the 3-judge is acting as a conveyer belt, and it was convened for a particular purpose.
“The court has taken a position against the petitioners which is prejudicial to them,” he said.
“Justice must not only be done, but it must also be seen to be done. Apart from the merits of the case, the petitioners believe that the bench is incapable of upholding their constitutional rights and their right to equal treatment under the law.”
Also Read: Court Rules on DCJ Mwilu’s Powers to Appoint Judges in Gachagua Case
Why Gachagua Wanted Judges Out of Ouster Case
Ndegwa also revealed that Florence Oluoch Auma, the spouse of Judge Eric Ogola, holds a position at the Kenya Water Towers Agency, an appointment done for and behalf of the presidency by the then Environment CS Soipan Tuya.
Advocate Kibe Mungai representing one of the other petitioners argued that the fourth respondent, Senate Speaker Amason Kingi, is a close longtime friend of Justice Anthony Mrima, who is part of the bench.
Mungai also mentioned that Speaker Kingi attended the wedding ceremony of Justice Mrima in 2021, took photos with him and posted on social media.
The lawyers also alleged that Mrima is a close friend to Kithure Kindiki who was nominated as next Deputy President, and that Lady Justice Freda Mugambi was once Kindiki’s LLM student at Moi University.
However, lawyers representing the National Assembly, the Senate, and the State argued that the allegations were frivolous and ascertained that Moi University does not offer an LLM (Master of Law), contrary to the allegations.
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These connections, according to the petitioners, created an improper environment for the judges to continue presiding over the matter.
The team had earlier accused the judges of hastily fast-tracking the hearing applications from the Attorney General and Parliament on a Saturday, despite having previously declined to halt the impeachment process.
Also Read: Ahmednasir Exposes Ruto Blunders That Could Hand Gachagua Lifeline
Gachagua’s Lawyers Question Formation of Bench
Led by Ndegwa Njiru, the lawyers had also argued that Deputy Chief Justice (DCJ) had no powers to constitute a bench.
Ndegwa Njiru sought clarification from the three-judge bench as to whether the DCJ has such powers to execute such a mandate.
This was the same bench that had been appointed by Chief Justice Martha Koome to hear and determine matters challenging Gachagua’s ouster.
However, on Wednesday, October 23, the judges rejected Rigathi Gachagua’s application contesting Deputy Chief Justice Philomena Mwilu’s authority to constitute it.
It dismissed the application with costs, criticizing the lawyers representing the ousted Deputy President for “playing to the gallery”.
“It is therefore our finding that the constitutional function of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform,” the bench held.
“We don’t find any difficulty affirming that the DCJ’s mandate can be administrative and political. It’s a constitutionally administrative function…On our part, we find the DCJ can deputise the CJ in judicial functions but not in the affairs of the JSC.”
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