Former Deputy President Rigathi Gachagua has suffered yet another legal blow after the High Court dismissed his second attempt to disqualify a three-judge bench from hearing petitions challenging his impeachment.
Gachagua and several of his legal allies had filed a motion questioning questioning the credibility of the sitting bench comprising Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi. They argued that the case should be referred back to Chief Justice Martha Koome for fresh empanelment. They claimed the judges could not fairly preside over the politically sensitive case.
However, the judges unanimously rejected the application, stating that the empanelment of benches is an administrative duty of the Chief Justice under Article 165 of the Constitution, and not a judicial matter open for review by a bench thats already sitting.
The allegations of bias, conflict of interest or abuse of power have not been substantiated in this case, the court ruled.
Court Defends Judicial Integrity, Warns Against Abuse of Process
In their ruling, the judges said the recusal application had no legal merit, warning that such tactics threatened to undermine judicial processes. They further argued that returning the file to the Chief Justice without a valid reason could open the door to interference in the judicial system and set a dangerous precedent.
The court added that the application offended the principle of res judicata, which bars re-litigation of issues already determined.
The motion to disqualify the judges came just as the court reconvened to reorganize the hearing of the consolidated impeachment petitions, after Chief Justice Koome officially regularized the benchs composition.
Petitioner Cites Alleged Bias, Seeks Expanded Bench
One of the petitioners, Joseph Enock Aura, through lawyer Harrison Kinyanjui, also pushed for the Chief Justice to appoint a new bench composed of at least five judges, excluding the current three. Aura accused the panel of bias, claiming that by allowing Prof. Kithure Kindikis swearing-in as Deputy President, allegedly in breach of constitutional procedure, they had already shown partiality.
In allowing the swearing-in of Prof. Kithure Kindiki as Kenyas Deputy President unconstitutionally, Justices Ogolla, Mrima and Mugambi stand tainted and irredeemably biased, Aura claimed.
Aura insisted the case raised novel constitutional issues warranting a broader bench. These include whether Prof. Kindikis appointment was lawful despite the lack of parliamentary vetting, and whether he vacated his Cabinet post before assuming the Deputy Presidency.
Court Clears Way for Impeachment Petitions to Proceed
Nonetheless, the judges remained adamant, clearing the way for the impeachment-related cases to move to the substantive stage.
Meanwhile, the court also addressed a separate application by Fredrick Mula, who had sought to substitute Gachagua as the main petitioner in four of the petitions. Mula argued that Gachaguas earlier notice of withdrawal created a vacuum in representation.
However, the bench ruled that Gachagua had officially notified the court of his decision not to withdraw, making Mulas application unnecessary and premature.
The application dated June 16, seeking to revoke the notice of withdrawal, is hereby allowed. The application seeking substitution of the petitioner is declined. Parties to bear their own costs, the judges ruled.
The ruling reaffirms Gachagua as the lead petitioner in his own impeachment battle.
