A three-judge bench appointed by Chief Justice Martha Koome on Tuesday, October 15, agreed to listen to a last-ditch application by Deputy President Rigathi Gachagua to halt the impeachment proceeding in the Senate. This comes just three hours after Justice Chacha Mwita dismissed a similar petition.
Justices Eric Ogola, Anthony Mrima, and Freda Mugambi have decided to hear the cases, barely hours before Gachagua’s impeachment trial in the Senate on Wednesday, October 16.
The judges accepted to hear the application, a minor win for Gachagua in his bid to stop the impending impeachment process in the Senate. Through his lawyer, Paul Muite, Gachagua stated, “We are seeking to persuade this court to issue a conservatory order today. So that the unlawful and constitutional resolution by the National Assembly do not proceed in the Senate. Given that opportunity to assert this report on our notice of motion for the conservatory of orders.”
Through his lawyers, Gachagua called upon the three judges to hear his arguments on why the impeachment process should not proceed.
The three judges will hear the case at 6pm, and will render a ruling at 8am on Wednesday. During the hearing on Tuesday, Paul Nyamodi, representing the National Assembly, requested the consolidation of 29 cases.
Earlier on Tuesday, the High Court rejected Gachagua's attempt to halt the Senate's upcoming impeachment proceedings, paving the way for the trial to begin as scheduled on Wednesday.
Justice Chacha Mwita delivered the ruling dismissing Gachagua’s petition that sought to restrain the Senate from acting on the National Assembly’s resolution passed on October 8. The ruling allows the impeachment process in the Senate to continue.
"Having considered the application and argument by parties, the constitution, and the precedent, the prayer for the grant of conservatory order is hereby declined," ruled Justice Mwita.
In his opinion, Justice Mwita reasoned that the Constitution has delegated the impeachment process to Parliament, and the court must show restraint in meddling with the process. Justice Mwita, however, ruled that the challenges raised in the petition can be considered after the Senate concludes its role.
Justice Mwita ruled the court had the jurisdiction to hear the petition brought by Gachagua, despite some of the responders to the petition arguing that the court had no jurisdiction since the matter in question stemmed from a constitutional process.
Gachagua's petition, filed last week, argued that the impeachment motion was flawed and deviated from the original accusations against him. He requested a conservatory order to stop the Senate hearing, insisting, "Pending the hearing and determination of the substantive petition herein, a conservatory order should be issued restraining and prohibiting the Senate from proceeding with the impeachment hearing."
The Deputy President contended that the motion amounted to a "vicarious assault" rather than a legitimate inquiry, alleging that the proceedings were marred by intimidation and undue influence on MPs. He accused the National Assembly of rushing the process to avoid judicial oversight, thus undermining constitutional principles.
Gachagua’s legal team criticised the impeachment as a personal attack on him and his family, claiming that the accusations did not meet the threshold of gross misconduct. He also argued that the motion violated the legal doctrine of exhaustion, asserting that alternative remedies should have been explored before resorting to impeachment.
It remains unclear whether or not Gachagua will use the same arguments in front of the three-judge bench or not.
