Nairobi — A three-judge bench hearing petitions arising from the impeachment of Rigathi Gachagua is scheduled to sit at 10am on Tuesday to consider the State's application for review of conservatory orders suspending the impeachment resolution.
The Attorney General will also invite the court to set aside orders halting the swearing in of Interior Cabinet Secretary Kithure Kindiki as Deputy President following the approval of his nomination by the National Assembly on October 18.
The sitting comes amid a renewed effort by Gachagua's lawyers to restrain further proceedings before the bench after they moved to the Court of Appeal to challenge a decision by the bench upholding its constitution by the Deputy Chief Justice as lawful.
The bench, comprising of Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi, will seek to dispense with applications that have delayed the commencement of the hearing of the petitions.
In its latest decision on Friday, the bench declined Gachagua's application for recusal which it declared unmerited.
The Justices dismissed the application a day after the bench declined a bid by Gachagua's lawyers to expunge misleading claims in an affidavit supporting the application.
"The application for recusal is hereby disallowed," Ogola declared, adding that the bench had extensively discussed the matter, including allegations of bias raised by counsel.
Gachagua's lawyer sought to delete two paragraphs after respondents flagged their inconsistencies with widely known facts.
One of the contested paragraphs suggested that Dr. Mugambi pursued an LLM under Prof. Kindiki, the Deputy President Designate, at Moi University. However, it became apparent that the institution offered no such program.
Third consecutive setback
The applicants also alleged a recent appointment of Justice Ogola's wife to a state parastatal by President William Ruto, despite attaching a Gazette Notice indicating that the appointment was made by the Cabinet Secretary for Environment.
"Justice Ogola is closely associated with his spouse who serves in the Kenya Water Towers Agency (KWTA)," lawyer Njeru Ndegwa told the court on Thursday.
In another claim, the applicants linked Justice Mrima to Senate Speaker Amason Kingi, citing the Speaker's presence at the judge's wedding in 2021.
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Friday's ruling marked the third consecutive setback for Gachagua before the bench since the commencement of the hearing, characterized by protracted procedural battles.
On Wednesday, Gachagua's lawyers led by Paul Muite, having recorded their appearance "under protest" from the outset, suffered a setback after the bench rejected an application contesting Deputy Chief Justice Philomena Mwilu's authority to constitute it.
Justices Ogola, Mrima, and Dr. Mugambi dismissed the application with costs, faulting the 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.
"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 it," the bench held.
The Justice Ogola-led bench also dismissed arguments that it convened unconventionally on a Saturday to invite parties for an inter-partes hearing on Tuesday.
"We hold that the accusations made by the applicant against this bench are entirely without merit," the judges affirmed.
