Nairobi — A three-judge bench sitting to consider petitions arising from Rigathi Gachagua's impeachment as Deputy President has directed his lawyers to file an application within an hour following protracted objections.
Justices Eric Ogolla, Anthony Mrima, and Dr. Freda Mugambi retreated from the courtroom at Nairobi's Milimani Law Court on Tuesday after ordering Gachagua's lawyer to file an application within an hour with respondents required to respond before 2pm.
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Justice Ogolla, presiding, issued the directive after prolonged arguments over the bench with Gachagua's lawyers challenging the involvement of Deputy Chief Justice Philomena Mwilu in empaneling the bench.
Senior Counsel Paul Muite told the bench his team would require sifficient time to file an application suggesting that the court defers a scheduled inter-parties hearing.
Lawyers representing the National Assembly and the Senate however challenged Gachagua's contention noting the Deputy Chief Justice is contitutionally permitted to deputize the Chief Justice.
The developments unfolded even as the State Law Office notified the court of its intention to oppose the listing of President William Ruto in the suits in violation of presidential immunity.
Preliminary objection
Attorney General Dorcas Oduor, who appeared together with former Attorney General Githu Muigai, said the President had seperately instructed lawyers to challenge his inclusion.
President William Ruto had filed a preliminary objection at the Kirinyaga High Court challenging the nomination of Interior Cabinet Secretary Kithure Kindiki as Deputy President, terming the case as flawed.
Lawyer Adrian Kamotho contended that the nomination of Kindiki to replace Rigathi Gachagua, following his impeachment on Thursday, October 17, can only be challenged as a presidential election petition at the Supreme Court.
He argued that the court, presided over by Justice Richard Mwongo, lacked jurisdiction to determine the case as framed.
"By virtue of Article 165 (5) (a) of the Constitution, the Honorable 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 pleaded.
"The petition, as drawn and filed, contravenes Article 140 as read together with Articles 148 and 149 of the Constitution, which provisions absolutely vest the Supreme Court with the mandate to determine disputes emanating from a presidential electoral process," the lawyer argued.
'Defective case'
Kamotho also cited Article 143 of the Constitution, arguing that as Head of State, the constitution grants President Ruto immunity from prosecution, and as such, he cannot be subject to a civil suit.
Article 143 (1) provides that: "Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office."
Article 143 (2) further states: "Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution."
Kamotho further cited a Supreme Court 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).
He noted that the court upheld the position that civil proceedings cannot be instituted in any court against the President or a person performing the functions of the President's office during their tenure in respect of anything done or not done under the Constitution.
Kamotho faulted the petitioners, terming their suit "a clear disregard of the law, [and] an abuse of the due process of court."
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President Ruto's lawyer asked the court to find the petition "irredeemably defective, null, and void ab initio for breach of mandatory provisions of the law."
His objection came a day after Gachagua wrote to the High Court Registrar contesting directives issued by a three-judge bench in Nairobi considering his petition, alleging bias.
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Jeremiah Wakaya is a multimedia journalist and Online Editor with a passion for international affairs, constitutional litigation, and governance.
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