Gachagua wants court to rule on legality of bench hearing his case

Showdown is expected when a decision is made today on whether three Judges empanelled by Chief Justice Martha Koome should continue hearing cases challenging the impeachment of former Deputy President Rigathi Gachagua.

Gachagua had moved to the Court of Appeal, arguing that High Court Judges Eric Ogola, Freda Mugambi, and Anthony Mrima were illegally constituted, thus, could not hear and determine the cases filed before them as they were not properly empanelled.

He will today appear before the three Judges with the sole question of whether he wants to continue with the battle before them or not.

His lawyer Paul Muite told the Court of Appeal that the die was cast and Gachagua would not get justice before the High Court bench as constituted.

He argued that three High Court Judges had openly shown their bias by declining to withdraw from the case.

The senior lawyer said that they erred by finding that Deputy Chief Justice Philomena Mwilu can carry out administrative duties on behalf of Chief Justice Martha Koome.

According to Muite, the Constitution clearly states that only the CJ can appoint Judges to hear cases.

Gachagua’s lead lawyer also argued that it was unfair for Justices Ogola, Mugambi, and Mrima to fast-track applications filed by the National Assembly and AG seeking to set aside orders issued by Justices Richard Mwongo and Chacha Mwita.

According to him, the same bench had initially told him that it had no earlier date other than October 29 when he urged them to allow him to come back to court on the Friday the Senate passed to remove him from office.

He asserted that the bench acknowledged that his case was urgent and had raised serious issues about the impeachment process before the National Assembly.

Despite that, he said, the bench denied him the orders and gave him a date far away from the day he required his intervention.

Gachagua alleged that it is clear that the bench was set up for a particular purpose.

He further said that the orders issued on a Saturday for a hearing on October 22 were irregular as no court in the country sits outside the set time—8 a.m. to 5 p.m. Monday through Friday—without express and written orders by the Chief Justice.

He argues that the three Judges erred by finding that the online filing system allows Judges to sit anywhere and at any time. The former DP also argues that they erred by directing that the rules be amended to allow for such a practice.

At the High Court Gachagua backed application filed by avid Mathenge, Peter Kamotho, Grace Muthoni, Clement Muchiri, and Edwin Munene.

His lawyer Elisha Ongoya argued that the CJ and the DCJ were given clear mandates.

While supporting the application for the Judges to down their tools, lawyer Ongoya argued that the power to appoint a bench is not administrative but a constitutional duty.

“We sat in this court this morning where my lord says that in virtual system we can sit anywhere, at any time or any day. Can the CJ be virtually absent, wherever she is at home, or wherever she is, the answer is no. Is the CJ disabled, no. The DCJ has no grounds to empanel a bench,” argued Ongoya.

On the other hand, the National Assembly, Senate and AG sought to have the cases dismissed. They argued that upon impeachment, the former DPs chances for salvaging the seat was rendered moot.

They asserted that the bench was properly constituted and had the powers to entertain the applications filed before it.