Lawyers clash over bench recusal

Lawyers representing impeached Deputy President Rigathi Gachagua and those representing the State clashed bitterly yesterday over a petition seeking the recusal of judges hearing the matter.

Trouble started when Gachagua’s lawyers demanded the recusal of one of the judges, Anthony Mrima from the three-judge bench, on grounds that he was close to Senate Speaker Amason Kingi.

Veteran lawyer John Khaminwa maintained that given the reservations raised by Gachagua’s team over Justice Mrima’s close association with the Senate Sspeaker, who is party in the matter, it was only proper that the judge recuses himself.

Allegations raised
He told the court that it was only proper that the judges in question recuse themselves to erase any doubts among the petitioners that justice will be served, adding that it mattered little whether the allegations raised against the judges were true or false.

“If people do not want you in this case, walk out, you are not the only Judge who can handle this matter…When people come to the judiciary, they expect the best, they expect people who can hear them and who they cannot suspect at all. But if then they are suspecting some people whether truthful or not, it is my humble submission that the natural thing as a Judge to do is to walk out,” Khaminwa submitted.

Gachagua and one petitioner, identified as David Mathenge, had sought Mrima’s recusal from the bench hearing the matter on grounds that of his close association with Kingi.

Khaminwa was backed by lawyer Kibe Mungai, who also questioned Justice Mrima’s association with the Senate speaker.

But responding, former Attorney General Prof Githu Muigai, representing the Attorney General, and Eric Gumbo tore into the allegations, terming them baseless and not sufficient to force the judge to recuse themselves.

Prof Muigai maintained that claims that Justice Mrima had a close relationship with Kingi based on the fact that they both hailed from one county held no basis.

“I have taught law for many years, any lawyer below the age of 50 is likely to have been my student, is that sufficient proof of my inability to dispense justice? The fact that one was a student of another, or a classmate of one, or that they hail from the same county cannot and should not be used as a ground for recusal,” Prof Muigai submitted.

Allegations on Judge Mrima
He was supported by lawyer Gumbo, who also tore into the allegations leveled against Justice Mrima and Justice Freda Mugambi, who had also been fingered over her alleged close association with President William Ruto’s pick to succeed Gachagua as deputy President, Interior Cabinet Secretary Kithure Kindiki.

“I have heard allegations that justice Mugambi was taught law at the university by Prof Kindiki, surely, is that sufficient ground to call for her refusal?” he wondered.
Today (Friday), the three-judge bench will hear another application seeking their recusal from cases touching on Rigathi’s impeachment process.

The three-judge bench comprising Justice Eric Ogola, Mrima and Mugambi will also hear submissions on the consolidation of the many cases touching on Gachagua’s impeachment. Earlier, lawyers representing the State and the National Assembly had urged the three judge bench to hear an application seeking to set aside orders blocking Prof Kindiki’s swearing-in as one of the orders expires today.

The judges were asked to prioritize the hearing of their application as the interim orders emanating from the Kerugoya Law Court are set to expire.

“That order was issued by one judge. Their nature is problematic. If possible, we ask that we be heard today. We don’t want to do anything outside the law,” lawyer Tom Ojienda submitted.
Justice Chacha Mwita had on October 18 issued an order suspending the implementation of the resolution by the Senate that upheld the impeachment charges against Gachagua, including the appointment of his replacement.

This order, he directed, was to run until October 24 when the matter was to be mentioned before the current bench for further action.

Justice Richard Mwongo sitting in Kerugoya on the other hand issued an order that pending the hearing and determination of the application inter parties, nobody should be appointed to the post of the Deputy President.