Gachagua Handed First Defeat In Bid To Stop Ruling On Kindiki Swearing-In
This is 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.
Marvin Chege 
Impeached Deputy President Rigathi Gachagua's chances of stopping the delivery of the ruling on the swearing-in of the Interior Cabinet Secretary Kithure Kindiki have hit a stumbling block.
This is 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.
Gachagua had earlier sought to have the three-judge bench consisting of justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi barred by the Appellate Court over what his lawyers saw as unlawful empanelment.
In his application, Gachagua argued that the constitution of the bench was unlawful since Chief Justice Martha Koome did not have a say in the matter.
Ousted DP Rigathi Gachagua with Cleophas Malala at the Milimani Law Courts on October 22, 2024. /X
Through Advocate John Njomo, the former DP is citing errors in the three-judge bench ruling finding that Mwilu can assign a bench. He contends that the Constitution only grants the Chief Justice power to empanel and assign Judges 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, adding ''That the actions and omissions of the impugned Bench are not only, wrong and unlawful but incorrect, and unprocedural."
According to the petition, Gachagua also argued that should the Court of Appeal fail to rule in his favour, he would be denied the right to a fair hearing. He thus called for his prayers to be answered so that his appeal does not become null and void.
However, Justices George Odunga, Patrick Kiage and Aggrey Muchelule stated that they could not grant Gachagua's request, citing procedural problems stemming from failing 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 Gachagua's team did not serve them with the petitions.
The Court of Appeal ordered that all the interested parties be served by tomorrow Friday, November 1, and that they respond to the orders service by Monday next week.
Justices George Odunga, Patrick Kiage and Aggrey Muchelule directed that the case be heard on November 6, 2024.
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's swearing-in ceremony can proceed.
