Former Deputy President Rigathi Gachagua has filed a fresh application challenging Deputy Chief Justice Philomena Mwilu’s decision to appoint a three-judge bench to hear and determine the impeachment case.
Gachagua on Thursday noon objected to yesterday’s ruling that declined to disqualify the appointment of Justices Eric Ogola, Anthony Mrima, and Fridah Mugambi from hearing and determining the former DP’s case.
In their new application challenging the appointment of the three-judge bench, Gachagua’s legal team led by lawyers Ndegwa Njiru, Danstan Omari and Kibe Mungai accused Justice Eric Ogolla and his counterpart Anthony Mrima of a conflict of interest in the contagious case.
While protesting the appointment of the two judges to hear and determine Gachagua's petition, the lawyers questioned the two judges' ability to provide a fair and impartial ruling.
Justice Ogolla was accused of allegedly having close ties with the presidency following the appointment of his wife to a state job. The lawyers also alleged 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 Mungai.
Mungai further described Speaker Kingi and Justice Mrima's association as a long-term friendship with the lawyer alleging that the Senate speaker once shared a post sharing light moments with the high court judge and captioned the photo, "long-time friend."
"Hearty congratulations to my long-time friend, Justice Anthony Mrima on the occasion of the renewal of your marriage vows with your beloved wife," the alleged post added.
Meanwhile, according to lawyer Ndegwa Njiru, Justice OIgolla's wife, Florence Oluoch Auma, 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 CS, a position the lawyer argued was closely tied to the presidency.
“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 Ogola’s wife may have been a beneficiary of that shareholding,” claimed Ndegwa Njiru.
Lawyer Danstan Omari, while backing Njiru and Mungai's claims, pleaded with the judges to recuse themselves from the petition and pave the way for the appointment of a fresh bench.
"Will the Deputy President have an audience before you when the main substantive motion is presented? It is our submission that the bench should recuse itself. The petitioner is afraid of this bench," Lawyer Omari argued.
However, the National Assembly's lawyers led by Eric Gumbo rebutted the allegations, terming lawyers Njiru and Omari's claims as a scheme to derail the proceedings of the court.
"Just like in our elections, whenever a party loses, it is never easy to accept the result of that loss. For that reason, people cast all manner of aspersions against the court and other independent organs of the constitution," Gumbo argued.
The fresh application comes barely a day after the same three judges dismissed Gachagua’s plea to have the bench disqualified on grounds that the deputy chief justice had no jurisdiction to appoint the bench to hear the case.
In the judgment delivered on Wednesday evening, the judges ruled that the constitution granted the deputy chief justice 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.
