From left to right background: Justices Freda Mugambi, Eric Ogola and Anthony Mrima during the hearing of a petition challenging the impeachment of Deputy President Rigathi Gachagua (foreground right) at the High Court on October 29, 2024. Also in the picture is DP-designate Kithure Kindiki.
The High Court will today decide whether to lift an order blocking the swearing-in of Deputy President-designate Prof Kithure Kindiki as sought by the Attorney-General and Parliament.
A three-judge bench of Justices Eric Ogola, Anthony Mrima and Freda Mugambi will also rule on if the High Court has the powers to determine the petitions challenging the removal of Rigathi Gachagua from office.
Through lawyer Muthomi Thiankolu, Prof Kindiki challenged the jurisdiction of the High Court to hear the more than 30 petitions on Mr Gachagua's ouster.
Dr Thiankolu submitted that the Constitution has given the Supreme Court the exclusive mandate to determine disputes emanating from a presidential electoral process.
Mr Gachagua was removed from office on October 17 and President William Ruto nominated Prof Kindiki for the position the following day and he was approved by the National Assembly.
The impeached DP and other petitioners, however, rushed to court and obtained orders blocking his replacement pending the determination of the cases.
Mr Gachagua argued that he was denied the right to fair hearing and a public participation exercise conducted by Parliament was a sham.
While challenging the conservatory order, Parliament submitted that Justice Richard Mwongo, sitting in Kerugoya, granted an order, which was final in nature, offending the rules of natural justice which dictates that both sides ought to be heard before issuing such an order with far-reaching implications.
Parliament further said the court issued the order without ascertaining whether it had the jurisdiction to entertain matters concerning the impeachment process.
Impeachment
According to Parliament, Articles 95 and 96 of the Constitution gives it the exclusive mandate to hold the Executive accountable through mechanisms including impeachment.
Through lawyer Eric Gumbo, Parliament said the judge issued the order with the effect of reviewing the impeachment proceedings.
Mr Gumbo further said that the petitioners; including David Mathenge, Peter Kamotho and Grace Muthoni Mwangi, did not reveal to the court that some of the issues they sought to suspend had already been overtaken by events.
This included the fact that the Speaker of the Senate, Amason Kingi, had published a gazette notice on the resolution to remove Mr Gachagua from office and his National Assembly counterpart, Moses Wetang’ula, had issued a notice for a special sitting that was held on October 18.
On the same day, Mr Gumbo said President Ruto had submitted the name of Prof Kindiki to the National Assembly for confirmation as DP.
“Unless the notice of motion is allowed as prayed, the entire proceedings even if the applicant (Parliament) is eventually successful, will be rendered nugatory in view of the ex parte orders issued by the Superior Court which have far-reaching implications and portend a constitutional crisis,” Mr Gumbo said.
Mr Gachagua moved to court challenging the basis on which the Senate endorsed the charges for his removal, arguing that they were not substantiated. His two attempts to scuttle the hearing of the petitions have been defeated.
The first application questioned the appointment of the High Court bench by Deputy Chief Justice Philomena Mwilu, to hear the cases but it was dismissed by the three judges, stating that the DCJ had the powers to appoint judges in the absence of the Chief Justice.
The petitioners later filed an application seeking the recusal of the judges over alleged bias but it was equally dismissed.
Meanwhile, the Court of Appeal will this morning hear an appeal by Mr Gachagua on the powers of the DCJ to appoint the judges.
