The hearing of an application by Azimio coalition seeking to stop a commission of inquiry into the Shakahola tragedy from commencing its sittings will be heard on Monday.
High Court Judge Lawrence Mugambi directed parties involved in the case to ready themselves for the hearing of the application on May 22
The coalition filed the case last week arguing that President William Ruto's appointment of the eight-member team is illegal and amounts to a usurpation of powers vested in other state organs by the Constitution.
“That leave is granted to the petitioners to file further affidavit if need be,” the judge said.
The opposition coalition wants the commission of inquiry suspended, pending the determination of the petition.
It is Azimio’s argument that the President Ruto usurped the authority of the national police service to conduct investigations by appointing the team.
Further, the coalition argues that the move undermines the command of the Inspector General of police Japhet Koome, who is not only required to carry out investigations but also forbidden from taking orders from anyone regarding who to investigate.
The petition also accuses Dr Ruto of empowering his personal nominees to undermine the constitutional mandate and authority of constitutional institutions and state organs.
Dr Ruto appointed the commission on May 4 and named Court of Appeal judge Jessie Lesiit as the chairperson, to investigate the deaths, torture, inhuman and degrading treatment of victims linked to the Good News International Church in Kilifi- linked to pastor Paul Mackenzie.
The commission is expected to establish the circumstances under which the deaths, torture and inhuman and degrading treatment took place.
“That section 3 of the Commission of Inquiry Act of unconstitutional and the entire Act is null and void as it gives the President power to determine who will carry out judicial duties,” Azimio leader Raila Odinga says in affidavit.
Lawyer Paul Mwangi says Parliament can establish a subordinate court or an independent tribunal by an Act of Parliament and the Judiciary is empowered by the Constitution to recruit qualified persons to serve in the courts.
The petition goes on to say that the appointment of Justice Lesiit as chairperson of the commission exposes the judiciary to embarrassment because it was made without consultation with Chief Justice Martha Koome and the judge will work under the supervision and jurisdiction of the High Court.
Furthermore, Azimio argues, Justice Lesiit will work under the direction of the President, who will determine her remuneration and allowances, and will have to compromise her independence.
"The precedent that will be set by not declaring the Commissions of Inquiry Act unconstitutional is that the President will now and in the future be able to entice sitting judges of the judiciary with appointments to commissions of inquiry and other executive appointments and thereby influence judges with perks that will create bias in such judges when they sit in judgement on actions of the executive in cases that come before them," Mr Mwangi said.
