Court of Appeal allows Gachagua to withdraw case challenging impeachment
Impeached DP Rigathi Gachagua with his lawyer Paul Muite at the Milimani High Court in Nairobi on October 22, 2024.
The Court of Appeal has allowed former deputy president Rigathi Gachagua to withdraw an application to stop proceedings at the High Court challenging his impeachment.
Through lawyer Paul Muite, Mr Gachagua on Wednesday told judges Patrick Kiage, Aggrey Muchelule and George Odunga that the matter had been overtaken by events as the conservatory orders restraining Prof Kithure Kindiki from being sworn in as deputy president had already been lifted.
Prof Kindiki was sworn in as the third deputy president under the 2010 Constitution on November 1, 2024, a day after the High Court lifted the order preventing him from assuming office.
Mr Muite told the court that he had already filed the main appeal challenging the powers of Deputy Chief Justice Philomena Mwilu to appoint judges.
The High Court had ruled that the mandate exercised by the Chief Justice under Article 165(4) of the Constitution to appoint benches to determine weighty constitutional issues was an administrative function and that the DCJ could assign judges when she was performing any of the constitutional functions on behalf of the Chief Justice.
“This matter deserves a decision to its conclusion and we pray for the withdrawal of the application but the court considers issuing directions to the substantive appeal,” Mr Muite said.
Attorney-General Dorcas Oduor, through Prof Githu Muigai, did not oppose the withdrawal of the application.
Mr Gachagua was removed from office on October 17 and President Ruto nominated Prof Kindiki the following day, who was confirmed by the National Assembly.
The impeached DP and other petitioners rushed to court and obtained orders blocking his replacement pending the determination of the cases.
While lifting the order last Thursday, the three judges said the constitutional framework does not contemplate a scenario where the office of the deputy president would remain vacant except for the short period required to fill a vacancy.
“As such, public interest demands that the office of the deputy president should not remain vacant,” said the judges.
Mr Gachagua challenged his removal, arguing that the charges against him were neither substantiated nor supported by evidence.
He said Parliament acted in an unconstitutional manner and denied him the right to a fair hearing under Article 25(c) and 50 of the Constitution, which was violated by the Senate when it voted to proceed with the impeachment motion without giving him an opportunity to be heard.
The former deputy president argued that the process was rushed with the sole intention of avoiding the scrutiny of the court.
