His lawyers 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.
Ahead of the hearing and consideration of a suit challenging his impeachment, ousted Deputy President Rigathi Gachagua has written to the Judiciary questioning how cases challenging his impeachment were placed before a 3-judge bench without affirmative direction from Chief Justice Martha Koome.
In the letter dated October 20, 2024, his lawyers 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 is 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.
Inside the Kenyan Senate chambers. /PARLIAMENT KENYA
Gachagua’s team also claimed that the three-judge bench consisting of Justices Eric Ogola, Anthony Mrima, and Frida Mugambi who were constituted to oversee six cases are set to work on two more cases on Tuesday, October 22, despite not being constituted to handle the Tuesday cases.
The judges are also accused in the letter of claiming there was no open date to hear the petitioners’ cases until October 29. However, when the government went to the same bench with two new cases the bench somehow managed to find two days earlier than the 29th they had said they would be available including a sitting on Saturday the 19th.
“The inalienable requirement of fair trial dictates that justice must not only be done, but also, that it must perceptively appear to be done. To the contrary in the instant matter, there is a clear case of bias in the manner in which the Petitioner is being treated. It is also evident that the jurisdiction of the Chief Justice is being usurped.
“The lightning speed with which the Kerugoya file was grabbed and directions were issued on a Saturday seems like a well-orchestrated plan to trample on the rights of the Petitioner by denying him a fair trial, right from the National Assembly, all the way to the Senate and now at the Judiciary,” added the letter addressed to the Deputy Registry High Court.
Gachagua’s legal representative noted that there were indications CJ Koome may not have been in the country during these significant developments, further complicating the legitimacy of the proceedings.
“We are instructed to request that an investigation be launched to establish how the file (Nairobi High Court Petition No. E565 of 2024) moved from Justice Chacha to the three judges without express directions from the Chief Justice. There are preliminary indications that the Chief Justice was not even in the country at the material time in question,” added the letter.
“The inalienable requirement of a fair trial dictates that justice must not only be done, but it must also appear to be done.”
Additionally, Gachagua highlighted media reports indicating that Kapseret Member of Parliament Oscar Sudi stated that Kindiki would be sworn in as Deputy President on October 22. “This conduct sends shivers to our client regarding the prospect of justice in his case, as it appears the bench is aligning itself with the interests of the National Assembly and the Senate,” the team opposed.
Gachagua’s legal team revealed that it is preparing to file a formal complaint with the Judicial Service Commission and sent a copy of their letter to Chief Justice Koome, seeking a written response regarding the issues raised.
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.
“I ask the Chief Justice Martha Koome to live true to the fidelity of our Constitution,” he said, insisting that he should have been allowed to defend himself before the Senate before his impeachment.
Deputy President Rigathi Gachagua speaking at the National Assembly on October 8, 2024. /PARLIAMENT KENYA