Deputy President Rigathi Gachagua and his legal counsel Paul Muite before the Senate in Nairobi on October 17, 2024 during the second day of his impeachment trial.
An epic legal battle is in the offing as Rigathi Gachagua obtained a court order suspending any plans to replace him as the Deputy President.
High Court judge Chacha Mwita, sitting in Nairobi, issued temporary orders, stopping the replacement of Rigathi Gachagua as the Deputy President until October 24 when a case he has filed will be mentioned before a bench of judges to be appointed by Chief Justice Martha Koome.
In Kirinyaga, Justice Richard Mwongo said certified the case filed by David Munyi and two others as urgent and stopped Prof Kithure Kindiki from assuming office.
The judge also directed the matter to be mentioned on October 24.
Justice Mwita certified the petition by Mr Gachagua as raising substantial questions of law and public interest and directed the file to be placed before Chief Justice Koome for appointment of a bench, who will give further directions as to the hearing of the case.
“The in the meantime, due to the issues raised in the petition and application, and the urgency demonstrated, a conservatory order is hereby issued staying implementation of the resolution by the Senate upholding the impeachment charges against the petitioner, the Deputy President of Kenya, including appointment of his replacement,” Justice Mwita said.
The court issued the order even as National Assembly proceeded with the vote to endorse the nomination of Prof Kithure Kindiki as Mr Gachagua’s replacement.
Mr Gachagua moved to court challenging the basis on which the Senate endorsed the charges for his removal, arguing that all the allegations were not substantiated or supported by an evidence.
He further argued through senior counsel Paul Muite that the Senate failed to conduct public participation, despite a directive by the High Court that the exercise be conducted at the constituency level.
“The National Assembly and the Senate conducted themselves in an unconstitutional manner and denied the applicant the right to fair hearing. His rights under Article 50(1) of the constitution were breached,” he submitted.
Mr Gachagua wants the court to consider several issues including whether a motion for the removal of the Deputy President through impeachment can validly be prosecuted in the Senate without public participation.
Extraneous matters
He further wants the court to determine whether Parliament should have considered new and ‘extraneous matters’ that were not raised in the special motion tabled before National Assembly.
“What is the standard and mode of public participation that ought to be attained to support an impeachment motion against a democratically elected Deputy President, in the face of a motion that relies on fabricated evidence of public participation?” he posed.
Mr Gachagua rushed to court arguing that the vacancy in the office of the deputy president may be gazetted and a new DP sworn in, rendering his petition useless.
“There has been demonstrated urgency to remove the deputy president from office and install another person, which may be done hurriedly with a view to frustrating the Deputy President, hence the urgency to hear this petition and the application,” Mr Muite said.
Five had been filed by Friday afternoon, challenging the removal of Mr Gachagua as the Deputy President.
Sheria Mtaani na Shadrack Wambui said in the petition that there were massive violation and mutilation of the Constitution by the Senate proceeded with the trial even after Mr Gachagua was taken ill and asked for the adjournment.
The lobby and the lawyer state in their petition that Gachagua was not given an opportunity to defend himself on the 11 charges filed against him by Kibwezi West MP Mwengi Mutuse who introduced the impeachment motion in the National Assembly last week.
Mr Mutuse said Mr Gachagua was taken ill and admitted at the Karen Hospital on October 17, 2024 when he was scheduled to defend himself against the allegations of gross misconduct and corruption.
In the case filed under a certificate of urgency by lawyer Danstan Omari the petitioners claim the Senate breached the Constitution when it validated the resolution of Parliament to remove Gachagua from office.
High Court judge Lawrence Mugambi ruled that the matter raises substantial issues of law necessitating the appointment of an uneven number of judges to hear and determine.
“I therefore direct that this file be placed before the Honourable Chief Justice for consideration of empanelment of a bench,” the judge said.
Another petition filed by 32 petitioners also sought orders stopping the replacement of Mr Gachagua until the Independent Electoral and Boundaries Commission (IEBC) is constituted.
It is their argument through lawyer Kibe Mungai that the 14-day period within which the President shall nominate the deputy president is to enable the IEBC to confirm whether the nominee qualifies to serve in the position.
He further said the 60-day period is also to enable the National Assembly to undertake public participation in the 290 constituencies, before the nominee assumes office.
“The petitioners contend that in the absence of a duly constituted electoral body, President William Ruto cannot lawfully appoint a replacement of Rigathi Gachagua as deputy president who is qualified under Articles 99 and 137 of the Constitution,” Mr Mungai said.
The petitioners added that the impeachment of Mr Gachagua was undertaken contrary to the Constitution and rules of natural justice, which was compounded by political betrayal, deceit, vendetta and malice of President Ruto and aided and abetted by Parliament.
“The removal of the 2nd respondent (Mr Gachagua) from office is an act of political deceit, vendetta and betrayal of the 2nd respondent and the people of Mount Kenya region,” the petitioners said.
