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.
"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.
