Haggle over orders' expiry time as Gachagua continues survival fight

The uncertainty on whether the orders issued freezing replacement of impeached Deputy President Rigathi Gachagua with Kithure Kindiki lapsed at midnight is the new headache that three Judges are being asked to interpret. 

This comes as Gachagua backed two applications to have the same judges, Judges Eric Ogola, Freda Mugambi and Anthony Mrima, that were being asked to settle the stalemate, to recuse themselves.

Time is the next battleground between Gachagua and the government.

Daggers were drawn on both sides of the case on whether the orders issued last week by High Court judges Chacha Mwita and Richard Mwongo ought to lapse on Thursday midnight or not.

Justice Mwita froze the Senate’s decision to remove Gachagua from the office on Friday last week in a case filed by Gachagua. He further ordered that there should be no replacement.

Mwita’s orders were express that they would expire on October 24, 2025.

“ In the meantime, due to the issues raised in the petition and an application, and the urgency demonstrated, a conservatory order is hereby issued staying implementation of the resolution by the Senate upholding the impeachment charges against the petitioner, the Deputy President of Kenya, including appointment of his replacement, until 24th October 2024 when the matter will be mentioned before the bench to be appointed by the Chief Justice, for appropriate orders and action,” ruled Justice Mwita.

At the same time, Justice Mwongo ordered that no one should assume the office of the Deputy President.

He also directed that the case should be placed before a bench appointed by Chief Justice Martha Koome on October 24, 2024 for a mention.

However, the judge was silent on whether the orders would lapse on Thursday.

“In light of the nature of the matters raised herein as noted in Order 3 herein, conservatory orders are hereby issued against implementation of the resolution of the Senate in terms of Prayer C of the Notice of Motion, preventing any person including the 2nd interested party (Kindiki) appointed by the President and approved by the National Assembly from assuming the office of the Deputy President. The matter is to be mentioned before the High Court bench on October 24, 2024,” ruled Justice Mwita.

Senate’s lawyer Tom Ojienda claimed that they believed that the orders would lapse on Thursday.

While imploring High Court Judges Eric Ogola, Freda Mugambi and Anthony Mrima to hear the government’s application to set aside the orders, Prof Ojienda asserted that justices Mwita and Mwongo intended that their orders would be in force until yesterday.

“We have an issue. The interim orders issued in Kerugoya, in our understanding, from our interpretation, once the file was referred to this court, the orders expire today. That is our understanding. We are going to seek the court’s guidance on the hearing of our application dated October 18, 2024,” said Ojienda.

He urged the court to give priority the application before it heard the applications filed for the court to withdraw from the case.

“In any event, the orders were issued by one judge, and the matter has been referred to a three-judge bench. The orders expire today,” Ojienda asserted.

However, the senior lawyer seemed not to be reading from the same script with David Munyi, Peter Gichobi, Grace Muthoni, Clement Muchiri, and Edwin Munene’s lawyer Ndegwa Njiru.

Njiru said that his understanding was that Justice Mwongo’s orders were effective until the application filed before him was heard and determined.

“Permit me to draw the counsel for the Senate in regard to the conservatory orders that were granted. The Judge sitting in Kerugoya was categorical that he granted prayer number C. The wording of those prayers were explicit that, had my good professor interacted with the document, he would have concluded that the orders were drafted in this manner. Pending the hearing and determination of this application interparties, this court be pleased to issue the orders it granted,” replied Ndegwa.

The Law Society of Kenya (LSK) and Wiper Democratic Party also argued that the the orders by Justice Mwongo were not to lapse yesterday.

Wiper's lawyer Dan Maanzo said: “If the orders were to expire today, then they would expire today at midnight. The day is not yet over. We have applications in the afternoon. I suggest that after we hear the applications today, we can discuss that matter before the court adjourns,” said Maanzo.

National Assembly’s lawyer George Murugara, had a different view from his Senate counterpart on the expiry of the orders.

He said that one order had lapsed, but it was his client’s decision to set aside the Kerugoya order.

“We brought to the attention of the petitioners that the interim orders, one of the interim orders expires today, and the other one is the one we are complaining about. The reason we are here is because of the application to set aside the orders issued ex-parte. We should proceed and be heard why those conservatory orders should be set aside,” said Murugara.

In the meantime, Gachagua sought to amend some of his court papers while President William Ruto’s lawyer, Adrian Kamotho, informed the court that he would no longer represent him in the case.

The lawyer said that Ruto cannot be sued in person as he enjoys immunity from civil proceedings until the end of his term.