Nairobi — Rigathi Gachagua's counsel have moved the court to decline an invitation to review conservatory orders suspending an impeachment resolution against their client citing the need to protect his rights.
Gachagua's lawyers led by Senior Counsel Paul Muite and lawyer Elisha Ongoya argued that orders suspending Gachagua's removal as Deputy President, and the nomination and appoitment of his replacement are well within the confines of the law.
Ongoya singled out President William Ruto's "hurried" nomination of Kithure Kindiki as Deputy President and the subsequent National Assembly vote on October 18 as "unprecedented".
He questioned whether President Ruto obtained clearances with regards to Kindiki's nomination in anticipation of the Senate resolution.
"Considering the unprecedented hurry to impeach Gachagua, I thought the country had become super-efficient," he argued citing Senate's conclusion of the impeachment trial on Thursday night, October 17.
"However, I discovered that we are still waiting a long time for IDs, passports and queuing in hospitals for health services," Ongoya told a three-judge bench of Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi on Tuesday.
Gachagua's lawyers cited Article 23 which empowers the High Court "to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights".
The lawyers held that a review of conservatory orders, as sought by the Attorney General, will prejudice Gachagua's rights.
Gachagua's advocates also poked holes into the public participation exercise that preceded the impeachment motion at the National Assembly as insufficient, inadequate and unjust.
Gachagua further accussed the National Assembly and Senate of bias.
The State is set to make its case for a review of conservatory orders on Tuesday afternoon before the bench retreats to rule on the aplication.
Delayed petition hearing
Tuesday's hearing 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 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.
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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.
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.
Friday's ruling marked the third consecutive setback for Gachagua before the bench since the commencement of the hearing, characterized by protracted procedural battles.
