Impeached Deputy President Rigathi Gachagua has moved to the Appeal Court, challenging the decision of Deputy Chief Justice Philomena Mwilu to empanel a bench to hear his case.

In his application filed under urgency through lawyer John Njomo, Gachagua wants the court to stay the proceedings before the impugned bench and certify the matter urgent.

“The orders being sought seek to protect the applicants’ inviolable right to a fair hearing under Article 50 of the Constitution and to prevent continued violation of the Constitution,” the court orders read.

In the application, Gachagua states that various rulings delivered in Nairobi E565 of 2024 and Kerugoya E013 of 2024, E014 of 2024, and E015 of 2024 challenge the removal by impeachment of him.

He argues that the High Court has severally ruled that the issues raised on the said petitions raise enormous substantial questions of law and of great public interest, deserving to be heard urgently on a priority basis and fit for empanelment of an uneven number of judges.

He says Article 165(4) of the Constitution empowers the Chief Justice to assign, upon certification, an uneven number of judges to hear and determine a matter raising a substantial question of law.

Gachagua’s arguments

“The Deputy Chief Justice had not the power to empanel and assign a three-judge bench; judges Eric Ogola, Anthony Mrima, and Fredah Mugambi (after the impugned bench) to hear and determine the interlocutory application and petitions pending before the High Court,” Gachagua states in court documents. 

He adds that an application dated October 22, 2024, was filed challenging the empanelment of the impugned bench by the Deputy Chief Justice on grounds that the Deputy Chief Justice has no power to do so under Article 165(4) of the Constitution.

He says by a ruling delivered on October 23, 2024, the impugned bench, in finding no fault on the part of the DCJ in empanelling and assigning the three judges to sit and hear the petitions, held that the DCJ can assign judges under Article 165(4) whenever she is discharging any constitutional functions of the Chief Justice.

Gachagua, however, contends that the stated ruling is based on not only a misinterpretation of Article 165(4) of the Constitution but also a violation of Articles 25, 27, 47, 48, 50 (1), and 260, as the Constitution accords the power to empanel and assign judges to only the Chief Justice, and therefore the DCJ has no power to assign and empanel judges.

“The said ruling is wrong, mistaken, erroneous, and not only based on a grave misinterpretation of Article 165(4) of the Constitution but also on a wrong analysis of the letter and spirit of the Constitution,” he states.

He avers that the impugned bench has been sitting severally when it proceeded to hear the petitions herein by issuing directions on consolidation with other similar petitions before it and directed the procedure of hearing and determining the pending applications before it.

The cases before the bench include applications for the recusal of the judges and applications for the setting aside of consevatory orders issued on 18th
October 2023, and an application by Gachagua dated October 18, 2024, seeking conservatory orders against the decision of the 11th respondent to remove the applicant by impeachment.

He contends that he is apprehensive that the impugned bench shall proceed to hear and determine the interlocutory applications and petitions herein in total violation of Articles in the Constitution, and therefore the continued sitting of the impugned bench continually violates Articles 25, 27, 47, 48, 50 (1), 165 (4), and 260 of the Constitution.

“On October 24, when the conservatory orders were set to lapse in a manner akin to unfair judicial action contrary to the Constitution, the impugned bench arbitrarily, inhumanely, unlawfully, and illegally neglected or declined to extend the said interim conservatory orders. 

“This was despite the applicant’s efforts and oral applications to have the said interim conservatory orders extended in order to preserve the substratum of his petition E565 of 2024, which is not only under threat but also on the verge of being rendered a nugatory and moot,” he continued.

Gachagua thus avers that the actions and omissions of the impugned bench are not only wrong and unlawful but incorrect and unprocedural. 

“Accordingly, Gachagua invokes the Court’s appellate jurisdiction and seeks a stay of the proceedings in the impugned bench pending hearing and determination of this instant application,” he stated.

“Additionally, being dissatisfied by the said ruling herein, he contends that he has preferred an appeal against the whole of the ruling herein together with the proceedings of the impugned bench in declining and neglecting to extend the interim conservatory orders,” he added.