Counsel for Rigathi Gachagua have urged the court to decline an invitation to review the conservatory orders suspending the impeachment resolution against their client, emphasising the need to protect his constitutional rights.
Gachagua’s legal team, led by Senior Counsel Paul Muite and lawyer Elisha Ongoya, argued that the orders preventing Gachagua’s removal as Deputy President, as well as the nomination and appointment of his successor, were fully in accordance with the law.
Ongoya specifically criticised President William Ruto’s “hasty” nomination of Kithure Kindiki as Deputy President and the subsequent National Assembly vote on October 18, calling the actions “unprecedented”. He raised questions about whether President Ruto had properly cleared Kindiki’s nomination in anticipation of the Senate resolution.
“Given the rush to impeach Gachagua, I thought the country had become exceptionally efficient,” Ongoya said, referring to the Senate’s swift conclusion of the impeachment trial on October 17.
“Yet, I discovered that we are still waiting for IDs, passports, and enduring long queues in hospitals for health services,” Ongoya remarked before a three-judge bench comprising Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi on Tuesday.
The lawyers cited Article 23, which grants the High Court the authority 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”.
They further argued that granting a review of the conservatory orders, as requested by the Attorney General, would infringe on Gachagua’s rights.
Additionally, Gachagua’s legal team challenged the adequacy of the public participation process preceding the impeachment motion in the National Assembly, labelling it insufficient, inadequate, and unjust.
Gachagua also accused both the National Assembly and the Senate of bias.
The State is expected to present its case for the review of the conservatory orders on Tuesday afternoon, after which the bench will deliberate and issue a ruling on the application.
Delayed Petition Hearing
Tuesday’s proceedings also come amid a fresh effort by Gachagua’s legal team to halt further proceedings before the bench, following their appeal to the Court of Appeal to challenge a decision by the bench that upheld the constitutionality of the Deputy Chief Justice’s appointment.
The bench is set to address the applications that have delayed the hearing of the petitions.
In its latest ruling on Friday, the bench rejected Gachagua’s application for recusal, declaring it unmerited.
“The application for recusal is hereby disallowed,” declared Justice Ogola, noting that the bench had thoroughly discussed the matter, including allegations of bias raised by the defence.
Gachagua’s lawyers had sought to have two paragraphs removed from an affidavit supporting the application, after the respondents flagged inconsistencies with well-known facts. One of the contested paragraphs claimed that Dr. Mugambi pursued an LLM under Prof. Kindiki, the Deputy President Designate, at Moi University, but it was later revealed that the university did not offer such a programme.
The applicants also alleged that Justice Ogola’s wife had been appointed to a state parastatal by President Ruto, despite the fact that the appointment had been made by the Cabinet Secretary for Environment, as indicated in the Gazette Notice.
“Justice Ogola is closely associated with his spouse, who serves in the Kenya Water Towers Agency (KWTA),” lawyer Njeru Ndegwa argued in court on Thursday.
Furthermore, the applicants claimed that Justice Mrima had a connection to Senate Speaker Amason Kingi, citing the Speaker’s presence at the judge’s wedding in 2021.
Friday’s ruling marked Gachagua’s third consecutive defeat before the bench since the hearing began, with the case characterised by drawn-out procedural disputes.
