Impeached Deputy President Rigathi Gachagua has written to the Judiciary questioning how one of the cases challenging his impeachment was placed before a three-judge bench without the express direction of Chief Justice Martha Koome.
In a letter to the Deputy registrar of the High Court, Mr Gachagua wonders how the bench, which had earlier been constituted by Justice Koome, ‘hastily convened’ last Saturday to consider an application seeking to lift an order blocking the swearing in of Interior CS Kithure Kindiki as the Deputy President.
Through his lawyer Mr John Njomo, Mr Gachagua said the “lightning speed” with which the case which was filed at the High Court in Nairobi and another on Kerugoya, were taken over by Justices Eric Ogola, Anthony Mrima, and Freda Mugambi, and gave directions for the matter to be heard on Tuesday, October 22, 2024.
The lawyer said it appears that there is a “well-orchestrated plan to trample on the rights of the Petitioner” by denying him a fair trial, right from the National Assembly, all the way to the Senate and now at the Judiciary.
“In the meantime, we are instructed to request that an investigation be launched to establish how the file (Nairobi High Court Petition No. E565 of 2024) moved from Justice Chacha to the three judges without express directions from the Chief Justice,” he said.
Justice Mwita had stopped plans of replacing Mr Gachagua as the Deputy President until October 24 when the case will be mentioned before a bench of judges to be appointed by Chief Justice Koome.
The National Assembly, however, rushed to court on October 18, seeking to lift an order blocking Prof Kindiki from assuming the DP’s position.
In Kerugoya, Justice Mwongo granted a similar prayer as sought by David Mathenge, Peter Gichobi, Grace Muthoni, Clement Muchiri, and Edwin Munene, and equally directed the case to be mentioned on October 24.
Parliament said whereas most of the prayers sought had substantially been overtaken by events, they portend far-reaching ramifications that could jeopardise public interests as Mr Gachagua had already been removed as the deputy president yet the court stopped Prof Kindiki was assuming the position.
“The applicant (National Assembly) is apprehensive that unless this application is immediately considered and appropriate orders issued, the country will be plunged into a monumental constitutional crisis and the entire substratum of this application will be irretrievably lost,” Mr Eric Gumbo said in the application.
The application was placed before the three judges on October 19 and the judges directed the matter to be mentioned on Tuesday, for directions.
“That in light of the urgency of the matter and the weighty issues raised therein, we direct that the application be served and responded to forthwith, for hearing inter-parties on Tuesday 22nd October 2024 at 11.00 a.m. in open court,” said the judges.
In the letter, Mr Njomo said there are preliminary indications that CJ Koome was not even in the country at the material time in question.
“The inalienable requirement of fair trial dictates that justice must not only be done, but also, that it must perceptively appear to be done. To the contrary in the instant matter, there is a clear case of bias in the manner in which the Petitioner is being treated,” he said.
Mr Njomo said although they were not notified about the bench being constituted, they were served with orders issued by a three-judge bench.
He said to the best of their knowledge, the same bench was constituted to hear six other petitions, which were consolidated and not the two cases filed at Milimani and Kerugoya.
He recalled while declining to issue any conservatory orders on October 16, the bench equally dismissed Mr Gachagua’s request for an earlier hearing date and insisted that the earliest available date was October 29.
“In a surprising turn of events, the same bench was able to convene very hastily on Saturday, 19th October 2024, and upon considering an application filed by the 2nd Respondent dated 18th October 2024, it issued directions that the 2nd Respondent’s application seeking to set aside the conservatory orders issued by Justice Chacha Mwita shall be heard on Tuesday, 22nd October 2024,” Mr Njomo said.
He said the judges further considered and issued directions in the Kirinyaga petition and issued similar directions for hearing on Tuesday.
“Essentially, it is important to note that the same judges who declined the Petitioner’s request for an early mention date in Nairobi High Court Petition No. 522 of 2024 have now issued a hearing date of 22nd October 2024 in the instant matter which had been scheduled for mention on 24th October 2024 in accordance with the directions issued by the Hon. Justice Chacha Mwita,” he said.
Mr Gachagua challenged his removal arguing that the charges for his removal were not substantiated or supported by evidence.
“The National Assembly and the Senate conducted themselves in an unconstitutional manner and denied the applicant the right to a fair hearing. His rights under Article 50(1) of the constitution were breached,” he submitted.
