Gachagua Runs To Court Of Appeal To Stop High Court Case On His Impeachment
Gachagua is contesting a decision that revealed that Deputy Chief Justice (DCJ) Philomena Mwilu acted lawfully when she constituted a three-judge bench to hear cases touching on his ouster.
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 with regard to his impeachment case.
In this edition, Gachagua is contesting a decision that revealed that Deputy Chief Justice (DCJ) Philomena Mwilu acted lawfully when she constituted a three-judge bench to hear cases touching on his ouster.
Gachagua in his appeal has asked the Appellate Court to suspend the proceedings before the High Court which resume on Tuesday, October 29.
The three-judge bench consisting of Justices Eric Ogola, Anthony Mrima and Fridah Mugambi is set to hear an application by the Attorney General and National Assembly seeking to set aside orders blocking Prof Kithure Kindiki from assuming the office of the DP.
Deputy Chief Justice Philomena Mwilu. /FILE
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 is thus calling for his prayers to 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.
On October 23, the three-judge bench declined to recuse itself from the hearing and determination of the case filed by Gachagua, the bench ruling that the constitution granted DCJ 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.
"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.