3-Judge Bench Refuses To Keep Off Gachagua Impeachment Case

A three-judge bench of the High Court on Wednesday, October 23 declined to recuse itself from the hearing and determination of 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 (DCJ) Philomena Mwilu the powers to choose a bench of judges to determine a case.

Justice Mrima while ruling on the matter, referred to Article 165 (4) which he stated had granted authority to the DCJ 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.

Deputy Chief Justice Philomena Mwilu. /FILE

"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 had also dismissed Senior Counsel Muite's claims 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.

“We don’t find any difficulty affirming that the DCJ’s mandate can be administrative and political. It’s a constitutionally administrative function…On our part, we find the DCJ can deputise the CJ in judicial functions but not in the affairs of the JSC," ruled Justice Mrima.

This is after 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, arguing that only Chief Justice Martha Koome could appoint a bench of judges to hear and determine a petition filed by Gachagua.

Gachagua's lawyers had demanded to know if the CJ was involved in the selection of an uneven number of judges to determine all petitions challenging the impeachment process.

Also under scrutiny was the same three-judge bench which dismissed his application seeking conservatory orders which 'hastily' declined to lift an order blocking Deputy President nominee Kithure Kindiki from assuming the position.

"The judges further considered and issued directions in Kerugoya High Court and issued similar directions for hearing on October 22, 2024." the letter read in part.

On Sunday, Gachagua made his first remarks since being admitted to the hospital with chest pains while on the verge of getting cross-examined by the National Assembly's counsel. During his press briefing, the ousted DP made it clear he would fight his impeachment in court, urging CJ Koome to ensure justice was served.