Impeached Deputy President Rigathi Gachagua suffered yet another blow on Thursday after the Court of Appeal declined to issue orders to stop the three-judge bench constituted by Deputy Chief Justice Philomena Mwilu to determine his fate.
Justices Patrick Kiage, George Odunga and Agrey Muchelule directed that the case be heard on November 6, at 12 noon, this year.
“The matter is urgent and has huge public interest and the members of the bench, though engaged in other matters in the course of next week, will assemble at 12 noon on Wednesday for the highlighting of submission on the matter,” Justice Kiage, the presiding judge stated.
The judges stated that they could not grant Gachagua's request, citing procedural problems stemming from the failure to adequately list and serve all parties involved in the consolidated case.
This is after the Independent Electoral and Boundaries Commission(IEBC) and the United Democratic Alliance(UDA) party claimed that they were not served with the petitions by Gachagua's team. The Attorney General, the National Assembly, the Senate and other interested parties urged the court that it could not continue with the case without the respondents being served.
The Court of Appeal ordered that all the interested parties be served by tomorrow Friday, November 1, and that they respond to the orders orders service by Monday next week.
The ruling delivered by the Court of Appeal came after Gachagua had sought the intervention of the court to stop the three-judge bench consisting of justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi, over what his lawyers termed was unlawful empanelment.
In his application, Gachagua argued that the constitution of the bench was unlawful since Chief Justice Martha Koome did not have an input in it and wanted the Court of Appeal to issue orders stopping the three judge bench from proceeding with the case.
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 appeal by Gachagua's team read in part.
In an earlier ruling, the 3-judge bench refused to recuse themselves and they are expected to deliver a ruling on whether Deputy President Nominee Kithure Kindiki swearing in ceremony can proceed.
