A three-judge bench comprising justices Eric Ogola, Anthony Mrima and Freda Mugambi has dismissed the petition by Rigathi Gachagua’s lawyers on whether the three-judge bench was rightfully constituted to hear the case challenging his impeachment.
The judges ruled that Deputy Chief Justice Philomena Mwilu acted within the law in empanelling the bench to handle the petitions challenging Gachagua’s impeachment.
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Reading the ruling at the Milimani Law Courts, Justice Mrima said that the Constitution of Kenya allows the Deputy Chief Justice to perform the roles of the Chief Justice in select circumstances.
“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,” Justice Mrima noted, emphasizing that the DCJ has the mandate of performing the Chief Justice’s roles.
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“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.”
Earlier, lawyers representing impeached Deputy President Rigathi Gachagua had raised concerns over the decision of Deputy Chief Justice Philomena Mwilu to constitute a bench on a Saturday to hear Gachagua’s case.
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Ndegwa Njiru, who is one of the lawyers in Gachagua’s legal team, stated that the DCJ does not have the authority to constitute a bench.
Njiru sought clarification from the three-judge bench on whether the DCJ has the power to do so.
He also argued that some of the files they submitted to the court had been dismissed, which they believed was unfair.
Lawyers argue DCJ’s authority to constitute a bench
On the other hand, lawyer Peter Wanyama pointed out that the constitution clearly states that the Chief Justice shall appoint a bench to handle substantive matters involving questions of law.
Additionally, the constitution specifies that the Deputy Chief Justice shall deputize the Chief Justice and therefore there is nothing wrong with what the DCJ did.
Also Read: DCJ Mwilu Powers Challenged in Gachagua’s Case as Lawyers Clash in Court
Lawyer George Murugara also supported this stance, arguing that in the absence of a Chief Justice, the Deputy Chief Justice can undertake the Chief Justice’s duties.
On his part, Peter Wanyama asked the judges before they adjourned to issue directions on the conservatory orders issued to stop the impeachment process and to hear their application for the court to set aside the conservatory orders sought by Gachagua’s team.
Justice Eric Ogola’s order to Gachagua’s lawyers
According to him, this would make judicial sense and promote public interest.
The judge, Justice Eric Ogola, directed that the applications challenging the constitution of the bench be filed within one hour.
Also Read: DCI Summons Rigathi Gachagua
Earlier on Monday, October 22, the impeached Deputy President’s lawyers wrote a letter to the Judiciary questioning how one of the cases challenging his impeachment was placed before a 3-judge bench on Saturday, October 19, without consulting Chief Justice Martha Koome.
“We act for His Excellency Rigathi Gachagua, the Deputy President of the Republic of Kenya (hereafter referred to as “our Client” who is the Petitioner in this matter,” the letter read in part.
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