Chief Justice picks bench as Gachagua fights back to halt ouster

As the Senate gears up for impeachment proceedings against Deputy President Rigathi Gachagua, the DP has turned to the High Court, seeking immediate suspension of the process. 

His prayers for interim orders came as Chief Justice Martha Koome appointed a three-judge bench to assess the validity of Gachagua’s claims regarding the flawed nature of the impeachment process.   

In a notice issued Monday evening, Koome composed the three-judge bench comprising Eric Ogola, Anthony Mrima, and Frida Mugambi to hear and determine five petitions all challenging the impeachment process against the Deputy President.

The appointment came shortly after a fresh application seeking to stop the Senate from debating and impeaching the second-in-command during sessions scheduled for October 16 and 17.

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Gachagua’s lawyers led by Paul Muite, argued that the impeachment process initiated by the National Assembly was flawed, maintaining that the DP was not afforded a fair hearing due to the limited time frame imposed in just 12 days. 

Muite emphasised that the standing orders, which guided the impeachment, contravened constitutional requirements for due process. 

The DP has argued that the public participation process mandated by law was insufficient and merely a sham, depriving Kenyans of the opportunity to engage meaningfully in such a critical process.

His lawyers submitted that the data on public participation was manipulated, as some constituencies reported higher numbers than the actual situation on the ground. 

Muite noted that there are significant discrepancies between the data collected from the constituencies and the tabulation presented in Parliament.

“For public participation to succeed, the Deputy President should have had the opportunity to respond to the 11 allegations before the questions were posed to the public,” Muite argued. 

He asserted that the process is questionable and concluded that it was neither fair nor just.

In seeking conservatory orders, Muite urged the court to temporarily halt the National Assembly’s resolution and the Senate’s impeachment proceedings, allowing for a thorough examination of the significant issues raised in their main petition.

“We plead that you grant us conservatory orders to temporarily halt the resolution of the National Assembly and the impeachment in the Senate, giving the court the chance to interrogate the weighty issues at hand,” Muite told the judge.

Regarding public participation, he cited Articles 25 (c) and 50 of the Constitution, which require everyone to have a fair trial. “Parliament, exercising quasi-judicial authority, is compelled to ensure that the Deputy President receives a fair hearing, which he did not,” Muite stated.

The senior counsel urged Justice Mwita to recognise that Parliament has forwarded its resolution to the Senate for further action, and his client is set to appear tomorrow.

Muite stated that the new petition arose from the National Assembly’s resolution to impeach Gachagua, arguing that the DP’s constitutional rights have been violated as the process has gained momentum and is now pending in the Senate.

“We are asserting that Gachagua’s rights have been infringed upon,” Muite told the court.

In response, the Senate and its Speaker, Amason Kingi, opposed the granting of conservatory orders, asserting that the process is ongoing and that Gachagua will have the opportunity to defend himself against the 11 allegations of gross misconduct and corruption. 

Through Mercy Thanji, the Speaker stated: “The Deputy President has not demonstrated that this petition will be rendered moot if the Senate is allowed to proceed with its constitutional mandate.”

Thanji added that it is in the public interest for the Senate to determine whether Gachagua is fit to hold public office.

“If the Senate is injuncted, the truth about the allegations against the Deputy President will remain unknown.

‘‘Let the legislative proceedings take their normal course,” Thanji submitted. 

“Once the Senate and National Assembly complete the impeachment process, the Deputy President can then approach the court to question its validity,” Thanji argued. 

Thus, she noted that Gachagua’s lawsuit is premature and should be dismissed with costs.

On its part, the National Assembly and its Speaker, Moses Wetang’ula, opposed the plea for conservatory orders, accusing Gachagua of forum shopping due to the filing of a similar application seeking related reliefs. 

Lawyer Paul Nyamondi argued against Gachagua’s claim that his recent petition is similar to one previously referred to Chief Justice Koome for bench empanelment.

Nyamondi urged the judge not to grant the orders, citing 24 similar applications filed either by Gachagua or his proxies. 

Justice Mwita will decide on conservatory orders sought by Gachagua on Tuesday at 2.30 pm.