Impeached Deputy President Rigathi Gachagua yesterday pushed for the recusal of a three-judge bench handling the case in which he is seeking orders to block Interior Cabinet Secretary Kithure Kindiki from being sworn into office.
In daylong submissions, Gachagua’s lawyers spiritedly pushed for the disqualification of the judges, saying he was not satisfied with the manner in which the bench was appointed.
Deputy Chief Justice Philomena Mwilu appointed the bench on Saturday.
Gachagua and other petitioners argued that the three judges were the same ones who had been appointed by Chief Justice Martha Koome to hear his impeachment.
On Saturday, Mwilu directed Court of Appeal judges Eric Ogolla, Antony Mrima, and Freda Mugambi to hear and determine the case filed by Solicitor General Shadrack Mose.
Blocking Kindiki
Mose seeks to set aside the orders blocking Kindiki’s swearing-in to succeed Gachagua as the Deputy President.
“It is unclear as to the circumstances that led to the placement of the file on this bench on a Saturday without the express directions of the Chief Justice on the composition of a bench,” Gachagua’s lead counsel, Paul Muite charged.
Muite said the government was determined to push through Kindiki’s swearing-in o without the courts hearing the petitions filed against the impeachment proceedings.
Lawyer Kibe Mungai weighed in on the issue saying there was a conspiracy to commit an injustice from the word go.
“There must be certain circumstances to justify why a bench should sit on Saturday or Sunday. We don’t know the special circumstances that made the DCJ do what she did,” Kibe said.
He faulted the formation of the three-judge bench for failing to observe the proper procedures for handling the file.
“It appears there is a usurpation of the powers and jurisdiction of the Chief Justice who is mandated to constitute benches,” he said.
In the case filed by Mose, Ruto says the High Court lacks jurisdiction to hear Gachagua’s impeachment case.
Ruto through lawyer Adrian Kamotho says that the court lacks jurisdiction to hear and determine the petition.
Abusing courts
He further argues that the petition amounts to an abuse of court process.
Ruto is opposing a suit filed by David Mathenge and four others at Kerugoya Court.
“The Petition herein has been filed in this Honourable Court in clear disregard of the law, is an abuse of the due process of court, hence cannot be countenanced and/or determined by this Honorable Court,” reads court documents.
Ruto wants the case dismissed arguing that civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010.
He avers that only the Supreme Court has the exclusive jurisdiction to hear the cases.
The president has been named as the fifth respondent in the case whereas the impeached deputy president is named as an interested party.
A three-judge bench is set to hear the case this afternoon challenging Gachagua’s stay orders stopping his nominated successor Kithure Kindiki from taking office.
The stay order was issued by a Kirinyaga court on Friday.
In his application, Mose argues the order is against the country’s interest to delay Kindiki’s swearing-in as the constitution does not envisage a vacancy in the office of the Deputy President.
“The said conservatory orders were issued ex-parte and without according to the state or the National Assembly or the parties a chance to be heard,” the application reads.
He says it is prejudicial to the people of Kenya and the entire republic if the office of the Deputy President remains vacant as a result of the ex-parte interim orders.
The National Assembly on the other hand claims Justice Richard Mwongo issued the order without ascertaining whether he had jurisdiction to entertain matters concerning the impeachment process.
