Impeached Deputy President Rigathi Gachagua has yet again suffered another blow after the Court of Appeal failed to issue orders stopping the three-judge bench from hearing and determining his fate.
Judges Patrick Kiage, Aggrey Muchelule and George Odunga on Thursday, October 31, 2024, declined to issue stay orders but ordered the matter to be heard virtually on November 6, 2024, for further directions.
“We cannot give orders at this stage as other parties in the case have not been served in the consolidated case. The case will be mentioned on November 6 for further directions,” the Court of Appeal judges said.
Gachagua through his lawyers had moved to the Court of Appeal challenging the decision of Deputy Chief Justice Philomena Mwilu to empanel a bench to hear his impeachment case.
In his application through lawyer John Njomo, Gachagua wanted the court to stay the proceedings before the bench and certify the matter urgent.
“The orders being sought seek to protect the applicant’s inviolable right to fair hearing under Article 50 of the Constitution and to prevent continued violation of the Constitution”, the court orders read.
Gachagua stated that various Rulings delivered in Nairobi E565 of 2024 and Kerugoya E013 of 2024, E014 of 2024 and E015 of 2024 challenged his removal by impeachment.
He argued that the High Court had severally ruled that the issues raised on the said Petitions raise enormous substantial questions of law and of great Public Interest, deserving to be heard urgently on a priority basis and fit for empanelment of an uneven number of Judges.
Through his lawyer, Gachagua said Article 165(4) of the Constitution empowers the Chief Justice to assign, upon certification an uneven number of judges to hear and determine a matter raising a substantial question of law.
He added that the Deputy Chief Justice has no power to do so under Article 165(4) of the Constitution.
“The Deputy Chief Justice had no power to empanel and assign, a three-judge bench- judges Eric Ogola, Anthony Mrima and Fredah Mugambi ( after the impugned bench) to hear and determine the interlocutory application and petitions pending before the High Court”, Gachagua stated in court documents.
The three judges had thrown out Gachagua’s petition insisting that DCJ Mwilu has powers to assign judges under Artcile165(4) whenever she is discharging any constitutional functions of the Chief Justice.
Gachagua, however, contended 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 and therefore the DCJ has no power to assign and empanel Judges.
He avers that the Impugned Bench has been sitting severally when it proceeded to hear the Petitions herein by issuing directions on consolidation with other similar Petitions before it and directed the procedure of hearing and determining the pending Applications before it.
The cases before the bench include applications for the recusal of the judges, applications for the Setting Aside of conservatory orders issued on October 18, 2024, and an Application by Gachagua dated October 18, 2024, seeking conservatory orders against the decision of the 11th Respondent to remove the Applicant by impeachment.
Gachagua told the Court of Appeal that if the bench proceeded to listen to all the petitions and make a determination would violate the Constitution.
