Gachagua rushes to Appellate Court, insists DCJ Mwilu can't name judges to hear his impeachment case

Impeached Deputy President Rigathi Gachagua has moved to the Court of Appeal seeking to stop the proceedings before the High Court on his removal, pending the determination of his appeal.

Mr Gachagua was dissatisfied with the ruling by the High Court on the powers of Deputy Chief Justice Philomena Mwilu to empanel a bench of judges to determine the cases.

“The applicant 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 of Kenya...therefore the DCJ has no power to assign and empanel Judges,” he said. 

Through lawyer John Njomo, Mr Gachagua said the ruling by Justices Eric Ogola, Anthony Mrima and Dr Freda Mugambi is 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.

In the ruling last week, the bench said that constitutional mandate exercised by the Chief Justice under Article 165(4) of the Constitution is an administrative function and that the DCJ can handle the same in the absence of the Chief Justice, to ensure constitutional responsibilities are carried out seamlessly without disruption.

“In our view, and in line with the doctrine of continuity in governance, the drafters of our Constitution were deliberate in ensuring that the administration of duties and application of constitutional provisions remain uninterrupted,” said the judges. 

'Wrong in their interpretation'

But Mr Njomo said the judges were wrong in their interpretation of the Constitution. The lawyer further faulted the judges for declining to extend the interim order, blocking the replacement of Mr Gachagua with Interior CS Kithure Kindiki. 

The order lapsed on October 24 and efforts by Mr Gachagua’s lawyers to have it extended were in vain.

Another order, issued by High Court Judge Richard Mwongo in Kerugoya High Court, is still in force, meaning that Prof Kindiki cannot be sworn in until the case is determined.

“Additionally, being dissatisfied by the said ruling herein, the applicant 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 herein,” Mr Njomo said.

The lawyer said he was apprehensive that the bench will proceed to hear and determine the applications seeking to lift the order, rendering his appeal useless.

“The applicant contends that unless this honorable court stays the proceedings before the impugned bench and certifies this matter urgent to be heard on priority basis...the intended arguable appeal shall be rendered moot,” Mr Njomo said.