Blow to Gachagua as judges reject recusal plea

The High Court has ruled that Deputy Chief Justice Philomena Mwilu acted within her authority when she empaneled a three-judge bench to hear cases challenging the impeachment of Rigathi Gachagua. 

While delivering the ruling, Justices Eric Ogola, Freda Mugambi, and Anthony Mrima dressed down lawyers representing Deputy President Rigathi Gachagua for casting aspersions against the bench.

The judges argued that the lawyers were beneficiaries of the same court and were enjoying court orders while casting aspersions against judges.

While holding that Deputy Chief Justice Philomena Mwilu can also appoint a bench to hear cases whenever Chief Justice Martha Koome is unable, the judges ruled that the application for recusal was unmerited.

They found that the Deputy Chief Justice can carry out the administrative functions of the Chief Justice.

Justices Ogola, Mrima, and Mugambi read the ruling in turns. Ogola started, then Mrima followed, while Mugambi dealt with the third issue raised. Justice Ogola concluded.

“We are satisfied that the prayers herein must fail. The bench emphasises its impartiality while hearing this case,” said Justice Ogola.

According to the three judges, the Constitution is supreme, and all other laws are subject to its authority and should be interpreted as a whole.

According to the judges, the holistic interpretation is meant to factor in a developing nation and evolving needs of the populace. They said the interpretation should not create an absurdity.

The trio were of the view that the functions of the Chief Justice are political, constitutional, and administrative.

“On our part, we have carefully considered the issue. The drafters had a reason to have the DCJ deputise the CJ in the Supreme Court and not in the Judicial Service Commission,” said Justice Mrima.

According to the judges, the drafters were, however, cautious to ensure continuity in the government.

“All constitutional responsibilities are carried out without disruptions,” he continued.

They pointed out that the DCJ empanelled the bench when Gachagua first approached the court seeking to block the National Assembly from considering the impeachment motion.

“It is beyond peradventure that the DCJ can appoint a bench while carrying out a constitutional function of the CJ,” he said.

Justice Mugambi addressed other issues raised in the case. This included a question on the time that the two files in Kerugoya were brought to Nairobi for the CJ to empanel the bench.

At the same time, an issue was raised that the three judges sat on a Saturday.

The bench was of the view that it was unfair for the petitioners to celebrate when they got court orders even outside the documented working hours but fuss when the court did the same to the Attorney General and the National Assembly.

“It is not unusual for the court to issue orders as and when an application is filed,” said Mugambi, adding that since Covid-19 and the introduction of the online system, the sittings and consideration of cases have also changed.

Justice Mugambi was of the view that the current practice should be amended as they still indicate that cases should be heard between 8am and 5pm, and when a case is filed under a certificate of urgency after 12pm, then it ought to be heard the following day.

She said that despite issuing orders that parties should appear on Tuesday, they did not interfere with the orders issued by Justices Chacha Mwita and Richard Mwongo.

According to her, it would have created a circus if the court had tilted the scales of justice in favour of the State.

“There is nothing unconventional about how this bench handled the application under a certificate of urgency,” she said.

Justice Mugambi also stated that lawyers’ intimation that a ‘radical surgery’ was a way of trying to intimidate the court. She said it appeared that since Gachagua was enjoying court orders issued in his favour, his lawyers had opted to cast aspersions against judges.

“The accusations raised by petitioners against this bench are entirely without merit,” said Justice Mugambi.

In a heated court session on Tuesday between lawyers, which the three judges tried to quell with assurances, lawyers representing Gachagua and other litigants challenging the impeachment questioned how the bench was empanelled and why the three sat on a Saturday to fast-track the applications by the Attorney General and National Assembly.

Yesterday, the three judges said that lawyers had raised the claim without evidence that they had actually sat on a Saturday.

Justice Mugambi said that the orders were issued electronically.

On Tuesday, lawyers Paul Muite, Elisha Ongoya, Kibe Mungai, and Ndegwa Njiru queried why other files that had no orders were not before the court despite being certified as urgent and sent to Chief Justice Martha Koome for empanelment on the same day.

It started with Muite telling the court that they were in court under protest. Then, lawyer Danstan Omari rose to ask if a case he had filed the same day, and certified as urgent, was before the trio.

The judges replied that they had only three files, two from Kerugoya High Court and another from Milimani, which they had been appointed to hear. Omari sensationally claimed that it was unfair to have his file ‘in a graveyard’ while those with orders not favourable to the State were being heard with urgency.

When Justice Mrima revealed that the bench was constituted by Deputy Chief Justice Philomena Mwilu, this exacerbated a tense session into a full-blown storm.

Lawyer Kibe Mungai asked the court how the bench was constituted without a written order from the CJ. He also questioned how the bench sat on a Saturday when it is the norm that court sessions can only be within working hours.

He claimed the court was giving the Executive ‘special treatment’ that was condoned by the 1963 Constitution, as the applications filed by the AG and National Assembly were fast-tracked to Tuesday while they were initially required to be mentioned on Thursday this week.  

The lawyer said that even in cases of abductions, courts do not sit beyond the gazetted hours.

“We expected that the general procedure was that we would come on Thursday this week as per the orders. The CJ would appoint the bench in writing. We have not officially received notification of the bench that is sitting. We expected a notification in writing that the judges would sit on a particular day. The applications, including those of abductions, are heard on a working day. On what basis is an application by the Executive heard on a Saturday?” said Kibe.

Justice Ogola intervened and stated that the court could sit at any hour, including at night and on weekends. He said that online filing enabled judges to do so.

“When you argue that the court sat on Saturday, you know matters reach us at any time. When you argue that way, you are arguing selectively, and we deal with matters online,” said Justice Ogola.

Justice Mrima got in to try to calm the lawyers. He said that the bench was hearing the cases not because of the orders issued but because of the new applications filed by the AG and National Assembly.

He claimed that by the time the applications were being filed, the bench had already been empanelled.

“I wish to make this clarification. The matters which are before us today, the three matters which are before us today, are not here because some conservatory orders were issued per se. The reason why they are here today is that subsequent applications were filed after the bench was empanelled. Those applications were filed online. I want to correct the insinuation that we are dealing with matters that had conservatory orders. If there is an application for recusal, then be it,” said Justice Mrima.

Then Justice Ogola dug in by asking the lawyers if they had any issue with  how the DCJ had acted, they should formally file an application.

Prof Githu Muigai, who is representing the Attorney General in the case, urged the court to give directions as ‘lawyers were giving speeches after speeches’ instead of dealing with a formal application before the court.

Muite, for Gachagua, took his turn to ask how the file left Kirinyaga to Nairobi for the DCJ to decide who was to sit. He pegged his issue on when Justice Mwongo issued the orders blocking Kindiki’s assumption of office. Even with the assurance from Justice Ogola that the bench had been appointed on Friday, they would hear none of it.  

National Assembly lawyers Josphat Murugara and Paul Nyamodi, and their Senate counterpart Peter Wanyama urged the court to disregard the arguments.

Gachagua’s other lawyer, Elisha Ongoya, was last to rise. He said that following the revelation that the DCJ had appointed the bench, his client had an issue to raise before any other business could proceed.

“Justice Mrima, you are a witness that the issue of empanelment has been raised here. My colleagues have rightfully submitted that the issue should be addressed. If you are not properly empanelled, how do we proceed?” He paused.