Ousted Gachagua now changes tack in his battle to salvage career

Former Deputy President Rigathi Gachagua Wednesday withdrew an application seeking to block the High Court from lifting orders that had stopped Kithure Kindiki from assuming office as the second in command.

His lawyer, Paul Muite, told the Court of Appeal that the orders sought had been overtaken by events as Kindiki was sworn as his successor on Friday.

In what indicates a shift of tact, Muite instead said Gachagua now wants the court to determine his appeal on whether High Court judges Eric Ogola, Freda Mugambi and Anthony Mrima were legally appointed.

According to him, there is a legal uncertainty about whether Deputy Chief Justice Philomena Mwilu had powers to empanel a Bench, a role he said was a preserve of the Chief Justice.

He urged judges Patrick Kiage, George Odunga and Aggrey Muchelule to expedite the case, citing its importance to the country. Attorney General Dorcas Oduor and Senate did not oppose the application.

The Senate lawyer Prof Tom Ojienda urged the court to award his client costs of the application, a prayer which was opposed by Katiba Institute lawyer John Khaminwa.

The judges agreed with Khaminwa that the case was a public interest one and could not attract costs.

Gachagua had urged the court to stop the intended hearing and determination of two applications filed to set aside orders freezing his impeachment and Kindiki assuming office as his successor.

According to him, would not get justice before the High Court Bench as constituted. The former DP argued that the three judges had openly shown their bias by declining to withdraw from the case.

He was of the view that the judges erred by finding that Mwilu can carry out administrative duties on behalf of Chief Justice Martha Koome.

According to Muite, the Constitution states that only the CJ can appoint judges to hear cases. He said the issue is novel and requires urgent intervention.

Muite said if the three judges continue sitting and it is found that they were improperly constituted, Gachagua would have been denied his right to a fair hearing and access to justice.

Gachagua also argued that it was unfair for Ogola, Mugambi and Mrima to fast-track applications filed by the National Assembly and AG seeking to set aside orders issued by Justices Richard Mwongo and Chacha Mwita.

According to him, the same Bench had initially told him that it had no earlier date other than October 29 when he urged the judges to allow him to come back to court on the Friday when the Senate passed to remove him from office.

He asserted that the Bench acknowledged that his case was urgent and had raised serious issues about the impeachment process  before the National Assembly.

Despite that, he said, the judges denied him the orders and gave him a date far away from the day he required his intervention.

The ousted DP alleged that the Bench was set up for a particular purpose.

He further said the orders issued on a Saturday for a hearing on October 22 were irregular as no court in the country sits outside the set time of between 8am and 5pm from Monday to Friday without express and written orders by the Chief Justice.

He argued that the three judges erred by finding that the online filing system allows the court to sit anywhere and at any time.

Gachagua further said the Bench erred by directing that the rules be amended to allow for such a practice.