Ruto's Lawyers Withdraw From Gachagua Impeachment Case

President William Ruto's lawyers have dropped out of the ongoing court case challenging former Deputy President Rigathi Gachagua's impeachment.

While appearing before the three-judge bench consisting of Justices Eric Ogolla, Anthony Mrima and Fridah Mugambi on Thursday afternoon, the Head of State's lawyers declared that they would no longer be representing the Head of State in the matter.

President Ruto's lawyer Adrian Kamotho Njenga argued that the Head of State's decision to join the case was against the law.

Kamotho referred to a Supreme Court judgement in 2022 that ruled that the president could not be enjoined to any legal proceeding such as the one filed by the former deputy president, to which President Ruto had been listed as the sixth respondent from the ongoing court case. 

"My Lord with your kind permission, I wish to bring to the attention of the court that we shall no longer be acting for the sixth respondent in this matter and to that effect, we have filed a notice to cease acting on account of the Supreme Court decision that the President cannot be subject to civil proceedings," Kamotho informed the court.

"So in that regard, we will not be able to act contrary to an express court order and we have therefore filed a notice to cease acting and we ask the court to deem that to be a sufficient notice that the person named as the sixth respondent is now unrepresented in these proceedings."

This impeachment case is a civil proceeding given it is between Gachagua and various State officials and agencies such as the Senate and the National Assembly.

On Tuesday, October 22, the legal team challenged the High Court's powers to hear petitions filed by Gachagua, arguing that the High Court cannot hear and determine the cases, given that such a matter was spared for the Supreme Court.

"The honourable court lacks jurisdiction to entertain the instant petition for reasons that, by dint of Article 165 (5) (a) of the Constitution, the honourable court cannot determine the petition as canvassed and/or grant the prayers sought, being a matter reserved for the exclusive jurisdiction of the Supreme Court," Kamotho argued.

The lawyers thus argued that it was an abuse of the court process. This comes after the impeached Deputy President moved to court to block nominated deputy president Kithure Kindiki from being sworn into office. 

Ruto's legal team, as a result, wanted the High Court to recuse itself and hand it over to the Supreme Court. 

"The Petition violates the provisions of Article 143 (2) of the Constitution as and the express order of the Supreme Court at paragraph 2117 (iv) of the decision in Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment), to the effect that civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010," the lawyer stated in court documents.

On Wednesday, October 23, the three-judge bench declined to recuse itself from the hearing and determination of the case, ruling 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.

"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.

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.