Gachagua alleges bias, irregularities, hours before court hears case

Deputy President Rigathi Gachagua (2nd left) with his lawyers Paul Muite, Tom Macharia, Njiru Ndegwa and Elisha Ongoya at the Senate Chambers during his impeachment motion hearing on October 17, 2024.[Elvis Ogina, Standard]

An epic legal battle unfolds today at the High Court placing the future of Kithure Kindiki's appointment as deputy president on egg shells.

The court is set to hear two cases regarding conservatory orders aimed at preventing Kindiki from assuming office.  

In a letter, Gachagua's legal team led by lawyer Kamotho Njomo requested clarification from the deputy registrar regarding the actions of Judges Eric Ogola, Freda Mugambi, and Anthony Mrima, who comprise the three-judge bench formed by Chief Justice Martha Koome to hear six petitions challenging Gachagua’s ouster.

The team accuses the judges of hastily fast-tracking the hearing applications from the Attorney General and Parliament on a Saturday, despite having previously declined to halt the impeachment process. 

Njomo's letter seeks to probe their actions as the bench prepares to hear applications today from the Attorney General and Parliament, which seek to lift orders barring Kindiki from taking office.

On Saturday, the bench certified the case as urgent, scheduling a hearing for today at 11:00 a.m. in open court No. 18 at Milimani Law Courts.

Attorney General Dorcas Oduor contends that the deputy president’s position is now vacant due to orders from Justice Richard Mwongo in a separate case filed by MCA for Baraagwi ward in Kirinyagah David Mathenge Munyi, among others.

Gachagua's legal team has questioned the judges, claiming favoritism and a lack of transparency. 

The controversy began when Gachagua filed Petition E565 of 2024 on October 18. Justice Chacha Mwita issued a conservatory order temporarily staying the Senate's resolution to remove Gachagua, directing that the case be forwarded to the Chief Justice for a bench to hear it, with a mention scheduled for October 24. 

However, on October 19, the three-judge bench unexpectedly issued orders for a hearing today, raising eyebrows among Gachagua's legal representatives, who argue that this rapid timeline undermines their client’s right to a fair trial.

Njomo’s letter outlines critical issues, including whether the case filed was properly submitted to Chief Justice Koome and the legitimacy of the judges' actions on Saturday. 

Additionally, Gachagua's team asserts that Justices Ogola, Mrima, and Mugambi, who are to oversee six cases set for Thursday, are also handling two more cases today, despite not being appointed for those cases by CJ Koome.

He emphasized that the judges, who had recently denied a mention date for Gachagua's case, were now hastily hearing related applications. 

According to Njomo, the judges further considered and issued directions in the Kerugoya High Court matter and issued similar directions for hearing on October 22, 2024 without being constituted by the CJ.

Gachagua's legal team asserts that Justices Ogola, Mrima, and Mugambi, who are to oversee six cases set for Thursday, are also handling two more cases today, despite not being appointed for those cases by CJ Koome.

Njomo stated, "The lightning speed with which the Kerugoya file was acted upon on a Saturday seems like a well-orchestrated plan to deny the petitioner a fair trial, from the National Assembly to the Senate and now the Judiciary."

He stressed the importance of procedural integrity, asserting that the rapid scheduling reflects a troubling disregard for due process.

The judges are also accused in the letter of claiming there was no open date to hear the petitioners' cases until October 29. 

Gachagua's lawyer says this was a well-executed plan to "trample the rights of the petitioner". 

Gachagua's legal team believes that CJ Koome was not in the country at the relevant time, suggesting that Gachagua has been denied a fair trial throughout the impeachment process. 

Njomo stated, "The inalienable requirement of a fair trial dictates that justice must not only be done, but must also be seen to be done." He argued that there is a clear case of bias against Gachagua.

In his letter, Njomo also noted instructions from Gachagua regarding  Kapseret MP Oscar Sudi, a close associate of President William Ruto, who was quoted in the media stating that Kindiki would be sworn in today at 10 AM.

 "By its conduct in moving the date from 24th October 2024 to 22nd October 2024, the three-judge bench appears to be dancing to the tune of Hon.Oscar Sudi. This unholy union is highly prejudicial to our client and raises serious questions about whether justice can be administered in this case," Njomo added.

Gachagua's team is calling for an investigation into how the case, initially handled by Justice Mwita, was transferred to the three-judge bench and expedited without express directions from CJ Koome. 

They have submitted a formal complaint to the Judicial Service Commission.

At the same time, the five petitioners from Kerugoya who secured orders halting swearing in of Kindiki have written to the Chief Justice seeking answers on how their case was transferred to the three-judge bench. It was earlier being handled by Justice Richard Mwongo. 

Meanwhile, the Attorney General is seeking to suspend the Senate's impeachment decision and lift the orders blocking Kindiki's installation, arguing that issuing the orders without a government hearing is unfair.

 The AG contends that the Constitution does not allow a vacuum in the deputy president's office and that the interim orders should be lifted in the interest of justice and governance.

The National Assembly supports this sentiment, arguing that the court orders had been overtaken by events since Kindiki’s name had already been approved by Parliament.