The Lower Eastern Times Opening The Third Eye
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The bench assigned to hear petitions related to Rigathi Gachagua’s impeachment as Deputy President and the appointment of Kithure Kindiki as his successor has refused to recuse itself.
Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi rejected the recusal request in a ruling on Friday, following a prior dismissal of Gachagua’s lawyers’ attempt to remove misleading claims from an affidavit supporting the application.
“The application for recusal is hereby denied,” Ogola stated, explaining that the bench had thoroughly discussed the allegations of bias raised by Gachagua’s counsel.
Gachagua’s legal team aimed to remove two paragraphs from the affidavit after respondents pointed out their discrepancies with well-known facts.
One disputed paragraph claimed that Dr. Mugambi pursued an LLM under Prof. Kindiki at Moi University, but it was revealed that the university did not offer such a program.
Additionally, the applicants claimed that Justice Ogola’s wife was recently appointed to a state parastatal by President William Ruto, despite a Gazette Notice indicating the appointment was made by the Cabinet Secretary for Environment.
Another claim connected Justice Mrima to Senate Speaker Amason Kingi, citing Kingi’s attendance at the judge’s wedding in 2021.
The bench clarified that the applicants had the option to appeal the decision.
They also directed petitioners to submit any necessary amendments to their petitions within five days, with respondents expected to respond accordingly.
Justice Ogola scheduled a hearing for Tuesday, October 29, to review the Attorney General’s application regarding conservatory orders that suspended the impeachment resolution and Kindiki’s assumption of office.
This ruling marked the third consecutive setback for Gachagua since the hearings began, which have been fraught with procedural disputes.
Appearing Under Protest
On Wednesday, Gachagua’s lawyers, led by Paul Muite, recorded their appearance “under protest” and faced another setback when the bench rejected their application challenging Deputy Chief Justice Philomena Mwilu’s authority to form it.
Justices Ogola, Mrima, and Dr. Mugambi dismissed the application with costs, criticizing the lawyers for “playing to the gallery.”
The court rejected claims from Gachagua’s team that Mwilu lacked constitutional authority to form benches under Article 165 (4), asserting that this role can be fulfilled by the Deputy Chief Justice when the Chief Justice is unable to do so for valid reasons.
The bench maintained that the Chief Justice’s role in assigning benches is an administrative function and can be delegated.
The judges also dismissed arguments that the bench met unusually on a Saturday to set up an inter-partes hearing for Tuesday.
“We find the accusations against this bench to be entirely unfounded,” they asserted.
The bench noted that the electronic Case Tracking System (CTS) allows for efficient handling of urgent matters, and lawyers are familiar with such practices.
“There was nothing irregular about how this bench addressed the two applications filed urgently,” the judges concluded.
“It is not uncommon for courts to issue directions upon the filing of an application or outside regular hours when circumstances demand it,” they ruled.
