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Gachagua lawyers: ‘DCJ Mwilu has no powers to empanel judges’ bench’
Impeached Deputy President Rigathi Gachagua with Senior Counsel Paul Muite at the Milimani High Court on October 22, 2024, for the hearing of two cases linked to his removal from office.
The hearing of three petitions challenging the impeachment of Rigathi Gachagua, and an application to lift an order blocking his replacement by Interior CS Kithure Kindiki, has been pushed to this afternoon at 2pm.
This is after Mr Gachagua’s lawyers, led by Senior Counsel Paul Muite, protested the appointment of the bench by Deputy Chief Justice Philomena Mwilu, to determine the applications filed by the Attorney-General and Parliament.
Before the matter was heard, Mr Muite informed Justices Eric Ogola, Anthony Mrima and Fredah Mugambi that they were appearing “under protest” because they were not told how the bench was appointed to determine the cases.
Lawyer Kibe Mungai submitted that by sitting on Saturday to consider the applications by National Assembly and the Attorney General, the courts were behaving pre-2010 constitution.
“We do not trust that the Chief Justice (Martha Koome) could do that (appoint the bench) because when she makes such an appointment, it has to be in writing. We expected a notification that these judges have been appointed and will be sitting to give directions on such a date. This did not happen,” he submitted.
Justice Mrima then explained to the parties that the bench was picked by DCJ Mwilu, who directed the matter to be handled by the judges.
“The applications were filed online and we gave directions for the matters to be mentioned today for further directions,” he explained.
But lawyer Ndegwa Njiru for Mr Gachagua said the powers of the CJ to appoint a bench is substantive and not administrative, hence cannot be shared with the DCJ.
“And because the power cannot be shared with the DCJ, we must move the court to set aside the orders,” he said.
The lawyer said it was their understanding that it is the Chief Justice alone who can empanel a bench.
“Where did the DCJ get the powers? We must hear these applications before we go to the root of the matter,” he said.
Prof Githu Muigai for Attorney General Dorcas Oduor said the court was being “treated to speeches” and asked the court to direct Mr Gachagua’s lawyers to file a formal application so that they can respond to it.
In a short ruling, Justice Ogola directed the parties to file the application and responses within one hour and appear in court at 2pm for hearing of the application.
