Impeached Deputy President Rigathi Gachagua has sought the recusal of the judges handling several petitions challenging his impeachment, claiming he will not get a fair hearing from the bench.
Through several lawyers, Mr Gachagua said he no longer had confidence in judges Eric Ogola, Anthony Mrima and Dr Freda Mugambi, claiming that the court had already taken a position against him in the matter.
As such, the bench will Friday afternoon decide whether it will continue handling the cases challenging the impeachment of Mr Rigathi Gachagua as the deputy president.
Through lawyers Kibe Mungai, Tom Macharia and Ndegwa Njiru, among others, Mr Gachagua and other petitioners challenging the impeachment process submitted that the judges had also failed to disclose their close relationship with some parties involved in the case, creating the impression that the bench was not impartial.
The lawyers said they feared that the bench would not act or conduct the proceedings in a fair, just and impartial manner and that it was only fair for them to recuse themselves.
Lawyers for the other side, however, dismissed the allegations as frivolous and unfounded, designed to further delay the conclusion of the matter, if not to intimidate and embarrass the judges.
"What we are asking is, in light of the allegations and fears, would either party feel that their right to a fair trial would be upheld? In our view, it would not be possible in the circumstances. The right to the protection of the law must never be in doubt," Mr Mungai submitted.
Mr Njiru argued that the court showed actual bias when it dismissed their application challenging the appointment of the bench, saying the judges condemned them in the judgment.
"The court has taken a position against the petitioners which is prejudicial to them," he said.
According to Mr Njiru, the perception out there was that the bench was a mere conveyor belt and that it was convened for a particular purpose and was part of a conspiracy.
"Justice must not only be done, it must be seen to be done. Apart from the merits of the case, the petitioners believe that the bench is incapable of upholding their constitutional rights and their right to equal treatment under the law," he said.
Senior Counsel Paul Muite pointed out that each of the judges who heard the more than 30 petitions were convinced that the issues raised were weighty and that questions remained unresolved.
"The matter needs to be decided by a bench that has no question of bias. Please grant the application for recusal and allow another bench to be appointed to determine the issues," he said.
Lawyer Teresia Wanjiru wondered whether Justice Mrima would "disappoint his friend" Mr Amason Kingi (Speaker of the Senate and a party to the cases) after claiming that the two were long-time friends.
Lawyer Shadrack Wambui said the judges were conflicted and guilty of failing to disclose material information that would have enabled the parties to determine and declare whether they would be comfortable appearing and proceeding before the bench.
However, the claims were dismissed by Prof Githu Muigai for the Attorney General, who said they were spurious allegations and cautioned the bench against granting the application, saying it would set a bad precedent and open doors for judges to be asked to disqualify themselves from hearing cases on the basis of friendship and association.
He pointed out that Thursday was the tenth day since the bench was constituted and no party had complained against the judges until the Attorney General and the National Assembly filed the application to set aside the order blocking the swearing in of Prof Kithure Kindiki as Deputy President and certified the case as urgent.
"When the orders were made in their favour, they were extremely happy. This appeal is based on the order obtained by the Attorney General. It (the bench) then became a bad bench because of the expedited hearing," Prof Muigai submitted.
Prof Muigai said it was their argument that the court's ruling on Wednesday substantially addressed the issues raised by the petitioners and they should be restrained from relitigating the issues.
"I have been teaching law for 38 years. I have taught three-quarters of the lawyers here under the age of 50. Should I also recuse myself every time I appear against them (in any matter)?" he asked.
The former attorney-general said no lawyer should ever make an application for recusal lightly and the judge should not disqualify himself if the allegations have not been substantiated or proved.
"A judge has taken a judicial oath. He answers to his conscience and to his oath. Without proof of the allegations, there can be no basis for disqualification," he said, urging the court to dismiss the application.
Lawyer Eric Gumbo for the National Assembly urged the judges to guard against manipulation of the court process in the form of forum shopping - where parties hope that a particular bench will issue favourable orders.
"Some of the claims are outrageous. What evidence do they produce? Absolutely none," he said.
The lawyer poked holes in claims that President Ruto appointed Justice Ogola's spouse to the Kenya Water Towers Board for a three-year term, saying it was a lie.
Mr Gumbo said the appointment was made by former CS Environment Soipan Tuya. He also dismissed claims that Dr Mugambi was a master's student of Prof Kindiki, clarifying that the judge obtained her LLM from Birmingham University in the UK.
"Isn't this peddling lies? They want to get you off this bench by hook or by crook," he submitted.
Mr Paul Nyamodi said the only mistake the court had made was to serve the nation and sit to decide cases.
The lawyer said judges do not live in isolation and that the wedding Mr Kingi is alleged to have attended and given to Judge Mrima took place in October 2021. "He never knew that three years later he would be sitting in a case where Kingi is a party," he said.
