Five petitions filed at the High Court challenging the process and decision of the National Assembly to approve the impeachment of former Deputy President Rigathi Gachagua have been withdrawn.
Mr Gachagua’s lawyer, Paul Muite, on Friday said this was done to avoid duplication as the issues in the cases were similar to those filed after the impeachment that was upheld by the Senate.
The petitions were filed by Mr Gachagua, Kennedy Kariithi, Dennis Okumu, John Mugo Kiragu and a lawyers’ lobby group – Gema Watho Association – in October 2024 during the impeachment process.
“The withdrawal is based on grounds that the constitutional and legal issues raised in the four pre-impeachment petitions are replicated in the seven post-impeachment petitions,” reads the notice filed in court by Mr Gachagua’s legal team and signed by lawyer Victor Swanya.
The files were before the contested three-judge bench consisting justices Erick Ogolla, Anthony Mrima and Fridah Mugambi as assigned by Chief Justice Martha Koome last year.
The development leaves a consolidation of seven cases active, which were filed after the Senate upheld the impeachment. Three of them were improperly assigned to the bench by Deputy Chief Justice Philomena Mwilu to handle substantive constitutional questions involving ouster of a Deputy President.
The seven cases, which were lodged at the High Court in Kerugoya and Milimani in Nairobi, will now be placed before the Chief Justice as directed last week by the Court of Appeal for her to properly empanel the bench. The Court of Appeal found that DCJ Mwilu lacked legal powers to assign judges.
The withdrawal makes it easier for CJ Koome to appoint a fresh bench, including reinstating the same judges, without seeming like she has fired them from the case.
Mr Gachagua and the other 40 petitioners are expected to pursue the case before the CJ’s bench. The case has 16 respondents, including the Attorney-General and Speakers of Senate and National Assembly, and eight interested parties led by Deputy President Prof Kithure Kindiki and the Law Society of Kenya.
The crux of the petitioners’ case is centred on several key questions, including whether due process was followed by the National Assembly and the Senate in impeaching Mr Gachagua.
The questions touch on the basis on which the Senate substantiated the charges for Mr Gachagua’s removal, the lack of adequate public participation, and the infringement of his rights under Article 50(1) of the Constitution.
More particularly, they view the rush and unprecedented speed with which the process was carried out as a ploy to deny Mr Gachagua a fair process.
They also want the court to determine whether Mr Gachagua was afforded sufficient time to prepare his defence against the impeachment charges.
Those issues struck at the heart of constitutional and procedural fairness, raising concerns about the extent to which MPs and Senators adhered to the standards of due process as outlined in the Constitution.
Through the case, the High Court was called upon to examine whether the procedural safeguards required by the Constitution were observed during the impeachment process.
The bench was also called to find out whether any potential lapses could render the impeachment process flawed or unconstitutional.
The court inquiry involve a review of the actions taken by the National Assembly and the Senate to determine if the principles of due process and fair administrative action were upheld.
Also to be determined is whether the question of political doctrine could oust the High Court’s authority to hear and determine queries regarding constitutional compliance in politically charged matters.
The court is expected to assess whether the political question doctrine should apply, thereby barring the court from intervening in what might be considered a matter reserved for the legislative or executive branches.
