Stage now set for Gachagua case as judges stay put
The ground has been set for a gruelling legal battle following the refusal by three judges to withdraw from the impeachment case filed by Deputy President Rigathi Gachagua.
Justices Eric Ogola, Antony Mrima and Freda Mugambi, who were appointed Chief Justice Martha Koome 11 days ago, dismissed the application by Mr Gachagua to recuse themselves from the case.
The judges upheld the objection put forth by Attorney-General Dorcus Oduor, the two Houses of Parliament and their Speakers Moses Wetang’ula and Amason Kingi.
They said the plea by impeached Mr Gachagua did not meet the legal threshold to warrant a recusal from the case.
Ms Oduor, through former AG Githu Muigai, teaming up with Solicitor-General Shadrack Mose, Senior Deputy Chief Counsel Emmanuel Mbita and Mr Charles Mutinda termed the application by Mr Gachagua as “flimsy and a forum-shopping spree”.
Mr Gachagua had said the bench would not be fair to him since the spouse of Justice Ogola had been named by President William Ruto as member of the Kenya Water Towers Board, that Justice Mrima is a friend of Mr Kingi and that Justice Mugambi was a masters’ student of Deputy President-Designate Kithure Kindiki.
In a ruling that lasted hardly 10 minutes the judges said the application for withdrawal did not meet the legal threshold.
The judges added that the more than 30 petitions challenging the impeachment of Mr Gachagua raise weighty constitutional issues.
According to the judges, it is only fair for the issues and applications to be heard and determined. They directed the parties to file written submissions and make any amendments to their pleadings within five days then fixed the case for hearing on October 29.
On that day, the AG, the National Assembly and the Senate will seek the setting aside of orders prohibiting the swearing in of Prof Kindiki to replace Mr Gachagua as Kenya’s Deputy President.
The recusal plea was pegged grounds of bias and impartiality. The judges said they analysed all the issues on threshold as discussed by the parties before arriving at their decision that the application by Mr Gachagua was unmerited.
“We have juxtaposed our discussions on the concept of the threshold, the grounds rest for the threshold in this case, which is bias and impartiality with the specific environment in the application and against the evidence provided,” the three judges said.
Justices Mugambi, Ogola and Mrima added that they considered the issues advanced by the parties and noted “the public interest in this matter and the need for expedition, coupled with the act to balance the interests of all parties.”
After disallowing the plea, the judges granted leave to the petitioners to file and serve amended petitions, if need be, within five days.
The judges also granted the respondents – the AG, National Assembly, Senate, Mr Wetang’ula, Mr Kingi, President Ruto and Prof Kindiki – leave to file and serve amended responses, if need be, within five days of service.
They noted that there are pending applications for conservatory orders and those seeking to discharge the same, review and set them aside be heard on October 29.
“The applications seeking to discharge, review and set aside the conservatory orders shall be deemed as responses to the applications for conservatory orders. Parties are at liberty to file and serve responses to either of the applications together with skeleton submissions within two days of this order. The said applications are fixed for hearing on October,29 at 10am in this court,” ordered the judges.
They allowed any party wishing to challenge their decline to quit the case to appeal.
Mr Gachagua, Wiper Party, lawmakers allied to him, Sheria Mtaani lobby and other parties, had applied for the withdrawal of the judges from the case through Mr Jackson Kala.
Through his many lawyers, Mr Gachagua said the judges had already taken a position against him.
His lawyers – Kibe Mungai, Paul Muite, Tom Macharia and Ndegwa Njiru and others – and the petitioners challenging the impeachment said the judges also failed to disclose their relations with some of the parties involved in the case.
The lawyers added that they were apprehensive the bench would not conduct the proceedings fairly.
Prof Muigai, Mr Paul Nyamondi, Mr Ben Millimo, Mr Eric Gumbo and Mr Michael Muchemi (for Kibwezi West MP Mwengi Mutuse who tabled the motion of impeachment in the National Assembly) dismissed the claims as reckless and baseless.
They said the allegations were meant to delay the conclusion of the case and intimidate or embarrass the judges.
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