Impeached Deputy President Rigathi Gachagua on Monday, October 28, filed a petition at the Court of Appeal seeking to stop the ongoing proceedings at the High Court while detesting the three-judge bench.
He wants the Appellate Court to issue an injunction stopping the impeachment hearing at the High Court over dissatisfaction after a ruling by the three judges failed to declare that Deputy Chief Justice Philomena Mwilu acted unlawfully in appointing them.
Gachagua through his lawyer John Njomo stated that the rulings were inaccurate, erroneous and were a misinterpretation of Article 165 (4) of the Constitution.
He further argued that Articles 25, 27, 47, 48, 50 (1) and 260 of the Constitution only accords the Chief Justice the powers to empanel a bench and not any other judicial officer.
“The applicant contends that the stated ruling is based on not only a misinterpretation of Article 165 (4) of the Constitution but also a violation of Articles 25, 27, 47, 48, 50 (1) and 260 as the Constitution accords the power to empanel and assign judges to only the Chief Justice of Kenya...therefore the DCJ has no power to assign and empanel Judges,” the Petition read in part.
''That the actions and omissions of the impugned Bench are not only, wrong and unlawful but incorrect, and unprocedural,'' it added.
According to the petition, Gachagua through his lawyers argued that should the Court of Appeal fail to rule in his favour, the he would be denied the right to a fair hearing.
He also added that his prayers should be answered so that his appeal does not become null and void.
''That unless the said orders are issued, any delay shall result in irreparable prejudice of the Applicant's rights to a Fair Trial & Hearing and ultimate loss of the substratum of his Petition E565 of 2024 which shall ultimately render both the intended Appeal herein and the Petition E565 of 2024 a nugatory, superfluous and moot,'' the Petition added.
Last week, the three judges, justices Eric Ogola, Anthony Mrima, and Frida Mugambi, ruled that Mwilu acted lawfully by constituting the bench on behalf of Chief Justice Martha Koome.
Justice Mrima, while reading 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.
