The Court of Appeal on Wednesday, November 6 gave the way forward on a case filed by former Deputy President Rigathi Gachagua challenging the empanelment of the High Court bench hearing his impeachment case.
Gachagua had moved to the Court of Appeal seeking orders to set aside the decision of the three-judge bench made up of Justices Eric Ogola, Anthony Mrima and Frida Mugambi by declaring it unconstitutional, saying its composition was done by Deputy Chief Justice Philomena Mwilu and not Chief Justice Martha Koome as required.
Following the application, Court of Appeal judges Patrick Kiage, Aggrey Muchelule and George Odunga had directed that the case be heard virtually on Wednesday, November 6.
The judges in their ruling on November 6 said that the former DP through his lawyer Senior Counsel Paul Muite has withdrawn the stay application in favor of an expedited hearing of the substantive appeal COACA E829 of 2024.
Gachagua’s legal team explained that the purpose of the stay application was in regard to swearing in of Prof Kithure Kindiki as DP pending hearing of the substantive appeal and has been overtaken by events, hence the withdrawal.
Senior Cousel Prof. Tom Ojienda in his submission thanked the complainants for withdrawing the application.
“We want to thank Senior Counsel Paul Muite for considering it fit to withdraw the application the consequence of whereof would be our entitled cost which we want to pass vigorously. We would want to pass to cost because that is deserved, we have had sleepless nights preparing just for this application,” said Ojienda.
Gachagua moves to Court of Appeal
The case had initially been set for hearing on Thursday last week but was adjourned November 6 after the court was informed that Gachagua’s lawyers had not enlisted all the respondents and served them with documents.
Also Read: Blow to Gachagua as Court Lifts Orders Stopping Kindiki’s Swearing-In
At the time, the judges directed that the appeal be amended to capture all the respondents as listed in the case before the High Court and that they all be served.
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The respondents were further directed to file their responses by Monday ahead of today’s hearing.
Gachagua moved to the appellate court after the High Court ruled that DCJ Mwilu acted within her authority when she empaneled a three-judge bench to hear cases challenging his impeachment.
High court ruling
The judges further argued that the lawyers were beneficiaries of the same court and were enjoying court orders while casting aspersions against judges.
Also Read: Blow to Gachagua as Judges Decline to Recuse Themselves, Issue Way Forward
While holding that Mwilu can also appoint a bench to hear cases whenever CJ Koome is unable, the judges ruled that the application against the empanelment was unmerited.
They found that the Deputy Chief Justice can carry out the administrative functions of the Chief Justice.
“We are satisfied that the prayers herein must fail. The bench emphasizes its impartiality while hearing this case,” said Justice Ogola.
According to the three judges, the Constitution is supreme, and all other laws are subject to its authority and should be interpreted as a whole.
Consequently, Gachagua through his legal team, filed a Notice of Appeal on October 24, 2024, seeking to overturn the ruling.
“We seek an urgent intervention to stay proceedings before the High Court in order to preserve the integrity of our client’s right to a fair trial,” stated an affidavit by advocate John Njomo.
Gachagua’s counsel argued that the petition attracted significant public interest and raised substantive legal questions.
His counsel emphasized that the High Court’s decisions thus far have shown the matter’s weight and urgency.
The former DP’s legal team has maintained that it is intent on continuing its onslaught on the credibility of the 3-judge bench which they accuse of being empaneled for the sole purpose of setting aside the conservatory orders stopping assumption of office of Prof. Kithure Kindiki.
