The judges — Eric Ogola (presiding), Anthony Mrima and Dr Frida Mugambi — will this evening deliberate on the consolidated petitions seeking to stop the DP's impeachment and deliver their ruling at 8am, just an hour before the ouster trial at Senate is set to begin.
From left: Justices Freda Mugambi, Eric Ogola and Anthony Mrima at Milimani High Court on October 15, 2024.
Photo credit: Wilfred Nyangaresi | Nation Media Group
The petitions are a last-minute effort to stall his impeachment, with DP Gachagua, through his lawyers, telling the bench of three judges that his and five other petitions would be rendered an academic exercise should the court decline to suspend the process.
“We are alive to the urgency of the matter. We have considered the arguments by all parties on the application (for conservatory order) and agreed to hear the application, with strict timelines,” Justice Mugambi said.
Mr Muite had insisted on being heard by the bench after submitting that Mr Gachagua moved to court under certificate of urgency to block the process given the infringement of his constitutional rights and the failure by the National Assembly to conduct the public participation exercise, as required by the law.
“In the absence of the conservatory order, as soon as the Senate votes to uphold the resolution impeaching the Deputy President, another person will be appointed the DP, rendering the petitions nugatory,” Mr Muite submitted.
He submitted that while appointing the judges to hear the six petitions, Chief Justice Martha Koome considered that the bench will also determine the application for conservatory order.
Mr Muite said Justice Mwita appreciated the weighty constitutional issues raised in the petitions and directed the file be taken to the Chief Justice for appointment of a bench to deliberate on the matters.
“It would be a very sad situation were this court to say it cannot interfere with the affairs of Parliament when there are clear violations of the Constitution,” he said.
The application was supported by Ndegwa Njiru and Lempaa Suiyanka and other advocates representing other petitioners, arguing that the public participation was a sham.
Parliament opposed the application through lawyers Paul Nyamodi, Benson Millimo and Peter Wanyama, submitting that the issue had been addressed by Justice Mwita.
Mr Nyamodi said that 29 petitions have been filed so far and all of them have raising similar issues- the right to fair hearing and public participation process.
Earlier, although Justice Mwita ruled that the court had the jurisdiction to determine the petition, the judge said Parliament should be allowed to run its course.
“There should be a delicate balance in respective mandates of different arms of government. Courts should strive to achieve the balance and respect what Parliament is constitutionally required to discharge,” said judge Mwita.
Justice Mwita said the Constitution has clearly laid down the mechanism through which governors, the President and the Deputy President can be impeached and that courts can only intervene when there is an outright violation of the constitution.
“Having considered the application and argument by parties, the constitution, and the precedent, the prayer for the grant of conservatory order is hereby declined,” ruled Justice Mwita.
The judge observed that the Supreme Court had pronounced itself on the question of whether courts can interfere with the affairs of tribunals and quasi-judicial bodies while carrying out their mandates and determined that courts should only be interfere where there is a glaring violation of the constitutional rights of the claimant.
The Judge subsequently referred the file to Justice Martha Koome to appoint a bench to hear and determine the issues raised, stating that they were weighty constitutional issues.
He said the CJ might send the file to be heard together by the bench already appointed to hear six other petitions or appoint another bench.
Justice Mwita noted that Mr Gachagua’s petition raises new distinguishable claims on public participation, violation of his constitutional rights, and the procedure invoked by the National Assembly before voting to impeach him on Tuesday last week.
“Granted, this is the first time that this county is experiencing an impeachment proceedings against the Deputy President. The petitioner has raised substantial questions of law including his violations of his rights to a fair hearing,” he said.
The DP had argued that he was not afforded a fair hearing and the principles of public participation were not met.
Through lawyer Paul Muite, Mr Gachagua said he was forced to file the fresh case following the new developments, including the purported public participation exercise that was conducted by National Assembly.
He said the public participation was being conducted at county levels until the High Court directed it be conducted in constituencies.
And even then, Mr Gachagua said the notice was inadequate hence the reason a paltry 224,000 people participated in the process.
He also cited the exercise in Keiyo South stating that the figures do not add up as only 43 people turned up for the exercise and 70 of them supported the impeachment while three opposed it.
National Assembly opposed the application and accused Mr Gachagua of forum-shopping as the petition was raising similar issues captured in other petitions pending before a bench of three judges.
The court also heard that the resolution to approve the impeachment motion followed the law and the constitution and that Mr Gachagua was given a hearing in compliance of the constitution as he appeared before the National Assembly and defended himself.
The Senate on its part argued that courts should not interfere in a process with constitutional timelines.
Further, Senate said court should exercise restraint and once concluded the court can interrogate whether it was conducted as per the constitution and the law.
The judge was told Mr Gachagua has the opportunity to appear before the Senate and make his presentation.
The petitioner will be given an opportunity to appear before the Senate. A person facing impeachment should not shy away from approaching court.
