Presiding Judge Erick Ogolla (centre) confers with Justices Freda Mugambi and Anthony Mrima at the Milimani Law Courts in Nairobi on Wednesday, October 23, 2024.
The hearing of more than 30 cases challenging the removal of Deputy President Rigathi Gachagua has been delayed further as his lawyers continue to question the empanelling of the judges .
Mr Gachagua's lawyers have already signalled their intention to appeal the ruling by a three-judge bench that Deputy Chief Justice Philomena Mwilu had the power to appoint the panel to hear the cases.
But even as the lawyers planned to appeal against the ruling by judges Eric Ogola, Anthony Mrima and Dr Freda Mugambi, they insisted that another application seeking the recusal of the bench for alleged bias be heard before any other matter.
At the same time, Attorney-General Dorcas Oduor and Parliament urged the court to hear their application seeking to set aside an order preventing Interior Cabinet Secretary Kithure Kindiki from assuming the DP position.
Through senior counsel Tom Ojienda, Senate said they needed only 30 minutes to argue their application while the “opposing team can take as much time as they wished”.
The sentiments were supported by Paul Nyamodi who submitted that Mr Gachagua’s lawyers were determined to scuttle the hearing of their application to lift the conservatory order by engaging the court in countless applications.
Mr Nyamodi said the directions given by the DCJ Mwilu when she appointed the bench were for the hearing of the applications seeking to lift the order blocking the swearing-in of Prof Kindiki.
Prof Githu Muigai had begun to argue the application when lawyer Kibe Mungai interjected and insisted that the court had not given directions as to the hearing of the cases and that some parties had not been served with the application by the AG and Parliament.
Sworn affidavits
Lawyer Ndegwa Njiru, representing one of the parties challenging Mr Gachagua’s impeachment, insisted that his application for the judges to disqualify themselves from the case must be heard first.
The judges agreed with Mr Ndegwa and directed all the parties to appear before them today morning for applications on consolidation of all the files and return in court later in the afternoon for the hearing of the application of their recusal.
“The application for recusal will be heard first,” Justice Mrima said as he directed all the parties to be ready to argue the application.
Prof Muigai for AG said all the people who have sworn affidavits in support of the application for the recusal of the bench should be ready to appear for cross-examination.
The bench had ruled that DCJ Mwilu properly exercised powers given to her by the constitution when she appointed them to determine the petitions.
“To us, it is beyond peradventure that the Honourable DCJ can assign judges under Article 165(4) of the Constitution whenever he or she is discharging any of the constitutional functions on behalf of the Chief Justice,” said the court.
The judges also dismissed claims that they sat on Saturday and outside official working hours to consider the application by Ms Oduor and the National Assembly, saying the full adoption of e-filing has made it easier for courts to issue directions online and cases are processed in real-time.
“The court did not sit but merely issued directions. For clarity, only prayer one, which sought to certify the matter as urgent was granted. The court was fully cognisant of the urgency of the matter and gave directions for the matter to be mentioned on October 22,” the court said.
Relevant statutes
The bench recommended to Chief Justice Martha Koome to give practice directions on the handling of cases online and relevant statutes be amended to provide clarity on the subject.
They further noted that the cases had drawn significant public interest and they should be determined speedily.
“It goes without saying that these legal proceedings are of paramount concern to the citizens of this country. To suggest, as the applicants have, that this matter lacks urgency and does not warrant full adjudication is disingenuous and dismissive of its far-reaching implications,” said the judges.
They added: “These proceedings in our view, as the bench, raise enormous public interest, and it is in the interest of the public that these proceedings are heard and finalised most expeditiously.”
The judges said they were committed to objectivity and neutrality in the matter.
“We assure all parties that their right to a fair hearing remains fully safeguarded. The bench, acting in fidelity to its oath of office and in strict adherence to the dictates of the Constitution, remains resolutely committed to the fair and just determination of the issues before it,” the judges said.
