How procedural blunders cost Gachagua's lifeline

Lawyers John Khaminwa, George Sakimpa and Njiru Ndegwa at Milimani High Court in Nairobi,  October 31, 2024. [David Gichuru,Standard

A simple but fatal mistake denied impeached Deputy President Rigathi Gachagua a critical chance to halt High Court proceedings hours before three Judges delivered the ruling.

When Gachagua moved to the Court of Appeal on October 26, 2024, he named the Attorney General, National Assembly, Senate, the two Speakers of Parliament, President William Ruto, the Law Society of Kenya, and  Kithure Kindiki as respondents.

However, High Court judges Eric Ogola, Anthony Mrima, and Freda Mugambi added the Independent Electoral and Boundaries Commission (IEBC) and the United Democratic Movement (UDA) as new parties in the consolidated cases.

Gachagua’s lawyers served the initial parties and left those enjoined in the case.

This is the technical move that the Senate, National Assembly, IEBC, and UDA used to frustrate and eventually forced an adjournment to November 6, 2024.

Gachagua needed the intervention of Court of Appeal judges Patrick Kiage, George Odunga, and Aggrey Muchelule to halt the afternoon’s ruling on whether to lift orders freezing the impeachment decision, giving Gachagua a lifeline.

However, in a session that replicated a dramatic High Court session, lawyers Adrian Kamotho, Tom Ojienda, Peter Wanyama, and Muthomi Thiankolu, in turns, insisted that all parties had not been added as parties and had not been served with the court papers.

Kamotho said he was representing UDA, adding that the ruling party had a stake in the application hearing.

Then Prof Ojienda picked cue by telling the presiding Judge Kiage that he could not see the lawyer who had called High Court judges “guys” during submissions.
On the other hand, IEBC lawyers also said they had not been served and added as respondents.

It is then that Gachagua’s lawyer Paul Muite told the court that the parties that were seeking to be enjoined came in after the High Court had declared that Deputy Chief Justice Philomena Mwilu had powers to impanel the bench headed by Justice Ogola.

In order to salvage the situation for his client, Muite said that they were amenable to have those who had sought to be enjoined do so in order for the hearing to continue.
Senior lawyer John Khaminwa sought audience with the court.

He said that although he had been served with the appeal papers on behalf of Katiba, the hearing could proceed.
“Have you been served?” asked Justice Kiage.

“No my lord, but this is a legal issue which can be argued orally,” replied Khaminwa.

Senior lawyer Paul Nyamodi joined in to say that there were many parties not before the court who had not also been served.

Khaminwa interjected and, this time, said that he had been served.

When Justice Kiage asked whether he had been served, he replied that the court should consider his age.

Justice Kiage called his colleagues for a short conference to determine whether they would sit.

When Justices Kiage, Odunga and Muchelule returned, they dashed Gachagua’s hope to halt the afternoon’s session before the High Court.

The three judges decided to defer the matter to Wednesday next week, the soonest day, they said, all them will be available.