Nairobi — A three-judge bench presiding over the case challenging Rigathi Gachagua's ouster as Deputy President is set to rule this afternoon on whether it will recuse itself.
Gachagua's legal team has accused the bench, led by Judge Eric Ogola, of bias, questioning its ability to deliver a fair judgment.
The judges, however, have dismissed these claims, accusing the lawyers of playing to the gallery and affirming that their appointment by Deputy Chief Justice Philomena Mwilu was constitutional.
During the morning session, the court will address preliminary issues, including the consolidation of petitions, as Gachagua seeks a ruling that would reinstate him to office.
On Wednesday, the bench rejected Rigathi Gachagua's application contesting Deputy Chief Justice Philomena Mwilu's authority to constitute it.It dismissed the application with costs after faulting lawyers representing the ousted Deputy President for "playing to the gallery".
The court rejected an assertion by Gachagua's lawyers that Mwilu lacks the constitutional authority to constitute benches under Article 165 (4) of the Constitution, a function they argued is exclusively reserved for the Chief Justice.
"It is therefore our finding that the constitutional function of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform," the bench held.
The Justice Ogola-led bench also dismissed arguments that it convened unconventionally on Saturday to invite parties for an inter-parties hearing on Tuesday.
"We hold that the accusations made by the applicant against this bench are entirely without merit," the judges affirmed.
The bench noted that the electronic Case Tracking System (CTS) allowed for seemless handling for urgent matters and that lawyers are well aware of the practise.
"There was nothing unconventional in the manner in which this bench dealt with the two applications filed under certificate of urgency," the judges held.
"It is not unusual for courts to issue directions within the filing of an application or what would be termed as outside the routine work hours of the court when circumstances do so require," the bench ruled.
Sabotaging the court
The bench further held that the court can issue directions on an application without the need for a formal sitting.
The court also took exception with the conduct of petitioners led by Senior Counsel Paul Muite, representing Gachagua, over an apparent scheme to derail proceedings.
The bench wondered why Muite's team would consider their petition urgent when seeking stay orders, ex parte, but seek to slow its hearing once they do so.
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"It is now apparent that the applicants no longer perceive the urgency in this matter. Instead, they see to cast aspersions on this court for addressing the matter with the necessary expedition," the bench stated.
"Such conduct is contradictory and undermines the very urgency that the applicants had initially invoked."
Gachagua launched the application contesting Mwilu's role in empaneling the bench on Tuesday when the court convened an inter-parties hearing, scuttling proceedings intended to consider an application for review of orders halting the swearing in of Interior Cabinet Secretary Kithure Kindiki as Deputy President.
The State Law Office also notified the court of its intention to oppose the listing of President William Ruto in the suits in violation of presidential immunity.
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 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.
