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Three High Court judges on Friday declined to recuse themselves from former Deputy President Rigathi Gachagua's impeachment case.

The three-judge bench consisting of Justices Eric Ogola, Anthony Mrima and Freda Mugambi while delivering the ruling, granted Gachagua's legal team an opportunity to file amended applications of their initial petition within five days.

"The applications for recusal are hereby disallowed. The petitioners are hereby granted leave to file and serve amended petitions, if need be, within five days of this order. Likewise, the respondents are granted leave to file amended responses if need be within five days of service," noted the three-judge bench. 

Justice Ogolla while reading the judgement, also declined to set aside the conservatory orders that stopped the swearing-in of nominated Deputy President Kithure Kindiki. The judge, instead, announced that the court would decide whether to lift the orders on Tuesday, October 29.

A three-judge bench of the high court in Nairobi during the hearing of an application filed by former Deputy President Rigathi Gachagua's legal team

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Judiciary

"Given the pending application of the conservatory orders and those seeking to set aside the conservatory orders, we hereby direct as follows; the applications shall be deemed as responses for the conservatory orders. The set applications are thereby fixed for hearing on October 29 this month," noted Justice Ogolla.

On Thursday, Gachagua's legal team filed an application protesting the appointment of the judges to hear and determine Gachagua's petition, the lawyers questioned the two judges' ability to provide a fair and impartial ruling.

The former deputy president's legal team, in particular, accused Justice Eric Ogolla and his counterpart Anthony Mrima of a conflict of interest in the  case. 

Gachagua's lawyers questioned whether Justice Ogolla can be impartial since his wife was appointed to a state job. The lawyers went ahead to claim that Justice Mrima was a close ally of Senate Speaker Amason Kingi thus not fit to listen to the case.

"The honourable Judge Mrima and the fourth respondent, Speaker of the Senate Amason Kingi are very close friends. The respondent attended the wedding ceremony of the judge and he took a photograph with him," noted Lawyer Kibe Mungai.

According to lawyer Ndegwa Njiru, Justice Ogolla's wife held a position at the Kenya Water Towers Agency, an appointment that was made by Defence Cabinet Secretary Soipan Tuya during her tenure as Environment Cabinet Secretary.

“One of the issues that was before the impeachment was that the DP indicated that Kenya is a shareholding country. It is my client’s submission that Justice Eric Ogolla’s wife may have been a beneficiary of that shareholding,” claimed Ndegwa Njiru.

Meanwhile, the latest court decision comes barely a day after the same judges dismissed Gachagua's plea to have the bench disqualify itself from hearing his petition claiming that their appointment by Deputy Chief Justice Philomena Mwilu contravened the law.

Rigathi Gachagua and his lawyer senior counsel Paul Muite. PHOTO/ Courtesy.

President William Ruto's lawyers on Thursday dropped out of the ongoing court case touching on former Deputy President Rigathi Gachagua's impeachment.

While appearing before the three-judge bench consisting of Justices Eric Ogolla, Anthony Mrima and Fridah Mugambi, President Ruto's lawyer Adrian Kamotho Njenga argued that the Head of State's appearance was inconsistent with the law.

In his argument, Njenga referenced a previous Supreme Court judgement that ruled that the president could not be enjoined in any legal proceedings such as the one filed by the former deputy president.

Njenga informed the court that a notice had already been filed seeking to remove President William Ruto from further participation in the case. Ruto had been listed as the sixth respondent.

President William Ruto at Kenyatta International Convention Centre, Nairobi, for the Banking Industry Inua Biashara Small And Medium Enterprise Exhibition, on Wednesday, October 16.

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PCS

"My Lord with your kind permission, I wish to bring to the attention of the court that we shall no longer action for the sixth respondent in this matter and to that effect we have filed a notice to cease acting on account of the Supreme court decision that determined that the president cannot be subject to civil proceedings," noted Kamotho Njenga.

"So in that regard, we will not be able to act contrary to an express court order and we have therefore filed a notice to cease acting and we ask the court to deem that to be a sufficient notice that the person named as the sixth person is now not represented in these proceedings"

On Tuesday, October 22, The Head of State, through his lawyers, protested the decision by the High Court to hear the case on the impeachment of Rigathi Gachagua. 

Ruto argued that the High Court had no powers to hear such a case and that the matter should be a preserve of the Supreme Court.

"The Petition herein filed in this Honorable Court in clear disregard of the law is a misuse of the due process of court, hence cannot be countenanced and determined by this Honorable Court," read part of the notice by President Ruto's lawyer to the court.

Ruto was forced to intervene after impeached Deputy President Rigathi Gachagua moved to court to stop nominated DP Kithure Kindiki from being sworn in and assuming office.

Following the application, High Court Judge Chacha Mwita issued conservatory orders stopping Kithure Kindiki's swearing-in. According to Justice Chacha, the petition raised pertinent constitutional questions that needed to be heard by a bench of judges appointed by Chief Justice Martha Koome. 

"Due to the issues raised and the urgency of the matter, a conservatory order is hereby issued, staying the implementation of the resolution of the Senate upholding the impeachment charges against the petitioner," read the court order.

Ousted Deputy President Rigathi Gachagua during a past event.

DPCS

A three-judge High Court bench on Wednesday declined to disqualify itself from hearing and determining the case filed by former Deputy President Rigathi Gachagua.

The bench led by Eric Ogolla, Anthony Mrima and Fridah Mugambi ruled that the constitution granted Deputy Chief Justice Philomena Mwilu the powers to select a bench of judges to determine a case.

Justice Mrima while passing the ruling, referenced Article 165 (4) of the Constitution which he stated granted authority to the Deputy Chief Justice to act on behalf of the Chief Justice on distinct occasions such as the one challenged by Gachagua's legal team.

"It is, therefore, our finding that the constitutional function of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform," noted Justice Mrima.

The Milimani Law Courts building which hosts the High Court

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Office of the Registrar High Court

"In this case, we do not find any fault in the honourable DCJ assigning judges to sit in this bench more soon when the honourable Chief Justice has not raised any red flag," he added.

The bench also went ahead to dismiss Senior Counsel Muite's allegations that the three-judge bench was constituted at night without a formal sitting. According to Justice Fridah Mugambi, the transfer of documents by the judicial officers could have as well been done using electronic means and not necessarily physical means as alleged by Gachagua's legal team.

The impeached deputy president through his legal team led by Senior Counsel Paul Muite on Tuesday, October 22 protested the decision by the three-judge bench to hear and determine the case.

The Muite-led team argued that the only person who could appoint a bench of judges to hear and determine a petition filed by Rigathi Gachagua was Chief Justice Martha Koome.

On October 18, the High Court in Nairobi issued conservatory orders stopping the swearing-in of nominated deputy president Kithure Kindiki until a petition filed by Rigathi Gachagua was heard and determined.

Justice Chacha Mwita noted that the petition filed by Gachagua's legal team raised monumental constitutional issues touching not only the functioning constitution but also its fundamental tenets of the rule of law and human rights.

The High Court judge further added that the petition raised substantial questions of law and public interest and therefore fit to be heard by a bench of uneven number of judges to be appointed by Chief Justice Martha Koome.

"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," read the conservatory order.

A collage of lawyer Paul Muite and the National Assembly's legal team in the case against DP Gachagua. PHOTO/@Govtcritic

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The High Court on Tuesday ruled that the Affordable Housing Act, 2024 was properly enacted and in accordance with the constitution paving the way for the government to continue with the program.

The three-judge bench comprising Justices; Olga Sewe, John Chigiti and Josephine Mong'are found that adequate public participation was conducted and due process was followed when establishing the fund. This was after six cases were filed at the courts challenging the levy's legality.

The judges observed that their ruling solely focused on key issues that were raised by the petitioners in regards to the Affordable Housing Act.

The key issues for determination included; whether there was adequate public participation on the matter, whether Articles 27,40 and 43 of the Constitution were infringed and whether the Act clawed on devolution.

Kenyans working at the affordable housing units

Kenyans.co.ke

The court was also supposed to make a determination on whether the government unprocedurally used public land to construct the houses without involving the National Lands Commission (NLC).

This comes after Chief Justice Martha Koome on March 19 appointed a three-Judge bench to hear and determine a string of cases challenging the implementation of the new Affordable Housing Act.

The ruling, is set to deal a blow to thousands of Kenyans who are now set to continue paying part of their salary to the government.

The government will now be able to continue with the affordable housing levy deductions, that it imposed at a standard rate of 1.5 percent on the gross salary of an employee or the gross income of a person received or accrued.

Employers will also contribute a 1.5 percent deduction from their employees' salaries, bringing the total contribution to the government to 3 percent.

In her ruling, Justice Mong'are stated that the petitioners' argument claiming the levy imposed on Kenyans was discriminatory was unsubstantiated.

She noted that the petitioners did not provide a clear structure for how collections from the informal sector were conducted, which hindered their ability to effectively challenge the case.

''The petitioners argue that the collection of the levy is discriminatory, while the Act is clear regarding the formal sector, stating that the formal sector is to be taxed on their gross salary, he did not provide for a structure on how collections from informal sector was to be made,'' Mong'are observed.

President William Ruto and former DP Rigathi Gachagua laid the stone for the building of affordable houses in Nanyuki on January 10, 2024.

William Ruto

The Directorate of Criminal Investigations (DCI) on Monday summoned ousted Deputy President Rigathi Gachagua to shed more light on the allegations of an attempted assassination by President William Ruto's administration.

In a statement obtained by Kenyans.co.ke, DCI termed Gachagua's sentiments as serious and that the remarks could not be taken lightly, especially when emanating from a person of his stature. 

In the summon letter, the former deputy president was directed to present himself at the DCI headquarters located along Kiambu Road in Nairobi on October 22. 

“On October 20, 2024, during a press conference, you publicly stated that there had been multiple assassination attempts on your life. You were quoted saying, 'On August 30, in Kisumu, undercover security agents entered my room, bugged it, and one of them tried to poison my food. We detected it and were able to escape the scheme. I was supposed to be killed by food poisoning,'" read part of the notice.

A photo of a police officer manning the DCI headquarters along Kiambu Road

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“These are serious allegations emanating from a person of your stature and cannot be taken lightly. In light of the seriousness of this matter, we kindly request your presence on October 22 2024 at the Directorate of Criminal Investigations (DCI) Headquarters, Mazingira Complex-Kiambu Road."

The detectives noted that due to the sensitivity of the case, the matter would be handled with the seriousness it deserved. 

“We understand the sensitivity of the allegations and assure you that this matter will be handled with the seriousness it deserves. Your statement is a crucial component of our investigation. Thank you for your prompt attention and your cooperation,” the detectives assured.

On Sunday, October 20, Gachagua in a televised press briefing moments after being discharged from Karen Hospital alleged how a team of officers from the National Intelligence Service plotted his assassination. 

Gachagua narrated how the undercover detectives attempted to poison him twice. He recounted the first incident, which reportedly took place in Kisumu on August 30 when the security agents allegedly entered his hotel room and allegedly poisoned his food.

“They bugged my room, and one of them tried to poison my food, but we detected it and escaped the scheme. I was supposed to be killed through poisoning,” Gachagua alleged.

The former Deputy President further added that the second attempt to kill him took place when officials from the NIS allegedly poisoned food meant for him and Kikuyu elders.

“After the two attempts to assassinate me failed, that is when this impeachment motion was hatched,” Gachagua alleged.

Deputy President Rigathi Gachagua speaking outside Karen Hospital on Sunday, October 20. PHOTO/ Courtesy.

Deputy President Rigathi Gachagua has revealed that there were two attempts to poison him in Kisumu and Nyeri.

Addressing the press outside Karen Hospital on Sunday, Gachagua, who insisted that he was still the DP, noted that he does not feel safe, especially after his security was withdrawn.

"I want to tell Kenyans that I don’t feel safe. When we were in Kisumu, undercover agents entered my room and bugged it. One of them tried to poison my food but we detected and we escaped the scheme," he stated.

"In Nyeri, another team from NIS (National Intelligence Service) also came and tried to poison my food. After the two attempts failed, that's when the impeachment motion was hatched."

Former Deputy President Rgathi Gachagua when he attended a thanksgiving event at Kigari Teachers' Training College on October 13, 2024.

DPCS

Gachagua further called out his boss, William Ruto, terming him as a vicious person for withdrawing his security while he was hospitalised.

He noted that he had trusted the President well enough not to need a memorandum of understanding like his peers, Musalia Mudavadi and Moses Wetangula, but the decision ended up costing him.

‘’I bear no grudge against anybody but I had not seen that in President William Ruto, the man I am seeing is not the one I thought that I knew,’’ Gachagua stated.

"It's unfortunate that while I was in the hospital, my brother and friend, William Ruto, ordered the withdrawal of my security detail. I no longer have any officers assigned to protect me. I never imagined Ruto could be that vicious, especially after I helped him become president. As of today, the Deputy President of Kenya has no security. If anything happens to me or my family, Ruto should be held accountable."

Gachagua, therefore, cast doubt on his safety urging that following the withdrawal of his security, President Ruto should bear the full responsibility if anything happened to him.

''I want the people of Kenya to know today that as I go home today, I have no security, and is good that they know that if anything happens to me or my family today, President Ruto must be held to account,'' he added.

Gachagua's address came after he was discharged from the hospital where according to him he was admitted after developing some chest pains.

''On my way to the office to pick up my notes, I suddenly developed a very intense pain in the chest. I sat down, the pain continued, and it was very sharp. I called my doctor and described how I was feeling. As we were speaking, I started experiencing shortness of breath,'' he added.

Former Deputy President Rigathi Gachagua(second right) joined by his family at the National Prayer Altar at the Official Residence in Karen,Nairobi on October 6, 2024.

DPCS

Ousted Deputy President Rigathi Gachagua appeared in public for the first time on Sunday and narrated the status of his health after he failed to show up to the Senate to testify.

Appearing weak and in a somber mood, the besieged DP stated that were it not for quick medical intervention, he would have been no more.

"After being examined, I was admitted for observation and treatment. Once I stabilized, the doctors informed me that if I had been late for another 20 minutes, we would be talking about a different story," he revealed while leaving Karen Hospital where he was receiving medication.

“As we speak, I am okay. I little bit weak but I feel better. The chest pains have gone away,” he added noting as a man he has nothing but to endure.

A collage of Deputy President Rigathi Gachagua and the Parliament buildings, October 16, 2024.

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Courtesy

Gachagua, therefore, took the opportunity to thank the people who visited him noting, "I want to say I would remain forever indebted to them,” he stated.

He noted that prior to his hospitalisation, he took lunch normally with senators from the Mt. Kenya region without any mishap. Moments later as he was preparing before the Senate, however, he developed complications and was rushed to Karen Hospital.

"On my way to the office to pick up my notes, I suddenly developed a very intense pain in the chest. I sat down, the pain continued, it was very sharp. I called my doctor and described how I was feeling. As we were speaking, I started having shortness of breath," he empathetically recounted.

He further revealed that he survived two poison attempts in Kisumu and Nyeri, blaming his ordeals squarely on President William Ruto

"When I look at it, it is history repeating itself. President Ruto wanted to take me out of the route President Moi took Kenneth Matiba. He (Moi) pushed Matiba up to getting a stroke and eventually dying. Many of (President Ruto's) people were calling to ask if I was dead. They were celebrating," he explained.

"If anything happens to me or my family, President Ruto must be held to account. As I go home today, I have no security," he stated adding that all close officers were disarmed and even threatened not to be found near him.

Gachagua maintained that he is still the deputy president of the republic given that the High Court had issued conservatory orders barring the swearing-in of deputy president nominee Kithure Kindiki on Tuesday October 22.

According to him, his security detail was withdrawn after he was rushed to the hospital. Additionally, all officers attached to his office were sent on compulsory leave to cripple his operations.

He expressed shock at the kind of treatment he was subjected to by a person he considered a partner. "I don't understand this kind of viciousness towards a man who has been your deputy, who has helped you become president, irrespective of whatever he has done. At his lowest moment in life, when he is literally struggling to stay alive," he stated adding, "I bear no grudges with anyone."

"I had not seen that in President Ruto. The man I'm seeing now is not the man I thought I knew."

President William Ruto with former Deputy President Rigathi Gachagua sharing a moment during the National Prayer Breakfast in 2024.

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PSC

The High Court in Nairobi on Friday issued conservatory orders stopping the appointment of Kithure Kindiki as the deputy president of Kenya to replace Rigathi Gachagua.

In his directive, Justice Chacha Mwita noted that the petition filed by Gachagua's legal team raised monumental constitutional issues touching not only at the heart of a functioning constitution but also its fundamental tenets of the rule of law and human rights.

Justice Chacha Mwita ordered the petitioner to immediately serve the application to the respondents with the judge further directing the respondents to file their applications in the next three days.

According to the High Court judge, the petition raised substantial questions of law and public interest and therefore fit to be heard by a bench of uneven number of judges to be appointed by Chief Justice Martha Koome.

A collage of Former Deputy President Rigathi Gachagua and Milimani Law Courts, October 15.

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Courtesy

"The file be placed before the Hon. Chief Justice immediately for consideration in that regard and that the pleadings be served immediately and be responded to within 3 days after service," read part of the court notice.

"That 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," the notice read further.

Following the injunction, the High Court resolved to set October 24 as the date for the hearing of the matter which was certified as urgent by Justice Chacha Mwita.

"The matter will be mentioned before the bench to be appointed by the Chief Justice, for appropriate orders and action," the court directed further.

The court decision followed barely an hour after Members of Parliament unanimously voted in favour of Kuthure Kindiki's nomination as the country's next deputy president.

National Assembly Speaker, Moses Wetangula questioning Health CS Nominee Debra Barasa during a grilling session on August 1, 2024

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National Assembly

The National Assembly on Friday approved President William Ruto's decision to nominate Kithure Kindiki as the country's next Deputy President following Rigathi Gachagua's impeachment.

The decision was announced after 236 members of parliament voted in favour with none opposing. The lawmakers were forced to vote twice after a slight technical hitch during the first round of electronic voting.

"Honourable members, the vote of the nominate of Professor Kithure Kindiki to fill the vacancy of the office of the deputy president of the Republic of Kenya is as follows, abstentions are nil, no is nil and ayes are 236, the vote is overwhelming yes," Speaker Wetangula declared.

"The nomination is hereby declared passed by the house and the speaker will transmit the results to the president and the speaker will also sign a gazette notice with this effect and the nominee for the position of the deputy president has been voted by the house and will be transmitted to the appointing authority," the speaker added.

National Assembly Speaker, Moses Wetangula questioning Health CS Nominee Debra Barasa during a grilling session on August 1, 2024

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National Assembly

The move followed Speaker Moses Wetangula's announcement, notifying the lawmakers of the Head of State's decision to nominate the former Tharaka Nithi Senator as his deputy. 

Prior to the voting process, a section of lawmakers requested Speaker Wetangula to clarify and provide guidance on the process of handling the nomination of Kindiki as the new DP.

Led by Navakholo MP Emmanuel Wangwe, the legislators sought to understand whether the National Assembly would be required to undertake a vetting and approval process as stipulated by the Public Appointments and Parliamentary Approval Act.

Deputy President Kithure Kindiki with former Deputy President Rigathi Gachagua on March 6, 2024.

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Kindiki

Former Deputy President Rigathi Gachagua's legal team on Friday morning moved to court to challenge Rigathi Gachagua's impeachment.

The legal team led by Senior Counsel Paul Muite faulted the Senate plenary's decision noting that the impeachment took place in the absence of the former deputy president who was a key witness.

The former deputy president was on Thursday evening dismissed from his position after a majority of the Senators voted in favour of the impeachment motion.

However, the impeachment occurred in the absence of the former deputy president who was scheduled to testify before the Senators but reportedly fell ill. Gachagua's lawyers revealed that Gachagua was experiencing severe chest pains.

Lawyer Ndengwa Njiru making submissions at the Supreme Court during the 2022 Presidential Petition on August 31, 2022.

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Judiciary of Kenya

Gachagua's legal team had initially promised to move to court if the Senate resolved to impeach the former deputy president. Senior Counsel Victor Swanya who spoke to the press earlier this month noted that they would explore all legal avenues to ensure justice was served  for their client.

The former Deputy President's legal camp has hinted that it plans to challenge the impeachment on inadequate public participation grounds.

The lawyer categorically noted that they would challenge the National Assembly's decision to only allocate two days for public participation arguing this limited time is inconsistent with the constitution.

Swanya further added that Gachagua's legal team would also challenge the decision by the Speaker of the National Assembly Moses Wetangula and his deputy, Gladys Boss participation in the impeachment process having pronounced their stands on the matter before.

"We have looked through the accusations of his excellency as the deputy president and we are prepared. You are giving notice now, and people wake up about what to be on that particular day, how fair is that? For the sake of natural justice, I think the two principal officers should recuse themselves," Swanya told the press.

The decision to challenge the impeachment coincided with the National Assembly's special seating on Friday morning. During the seating, Speaker Moses Wetangula announced that Interior Cabinet Secretary Kithure Kindiki had been nominated by President William Ruto to replace Gachagua.

"I have received a message from the president regarding the nomination of Kithure Kindiki to fill the vacancy which has occurred in the Office of the Deputy President following the impeachment of the previous office holder," Speaker Wetangula announced.

The former Interior Cabinet Secretary is set to undergo scrutiny by the National Assembly within sixty days. After parliamentary approval, Kindiki will formally be appointed by President Ruto.

Rigathi Gachagua, with Deputy President Kithure Kindiki at a past meeting.

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DPPS