Gachagua and the State clash over Mwilu's night decision

The question of whether the three-judge bench put together by Deputy Chief Justice Philomena Mwilu was properly constituted was the first hurdle on Tuesday in the impeachment hearings on impeached Deputy President Rigathi Gachagua.

Gachagua urged three judges empaneled by Mwilu to withdraw from three cases placed before them on Friday last week.

Gachagua, who filed his application alongside David Mathenge, Peter Kamotho, Grace Muthoni, Clement Muchiri, and Edwin Munene, claimed that the Justices Eric Ogola, Freda Mugambi, and Anthony Mrima were illegally constituted and, hence, cannot sit.

In their application, Mathenge, Kamotho, Muthoni, Muchiri, and Munene argued that the application filed by the Attorney General and National Assembly on Friday to warrant the DCJ appointing the bench and fast-tracking the cases today was not urgent.

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According to them, out of 10 cases that had been filed on Friday, only three which had orders barring Interior Cabinet Secretary Prof. Kithure Kindiki assuming the Deputy President’s office were placed before the Judges.

“The current bench was empaneled immediately after the respondent filed their application; it is clear beyond peradventure that it was specifically appointed to set aside the conservatory orders issued in the subject cases.

It was unconstitutional for the Deputy Chief Justice to sit at night to appoint a bench, given the fact that even in the numerous cases of abduction, the Chief Justice herself has not sat at night to appoint benches authorising them to conduct judicial proceedings on Saturdays and Sundays,” argued their lawyer Kibe Mungai.

Kibe said that although the law requires the President to nominate a person for the DP’s position within 14 days and the National Assembly processes the same within 60 days, the same happened within four hours.

“The DCJ, having usurped the powers of the CJ, proceeded to sit at night to appoint a bench and authorised a bench to sit on a Saturday. That was irregular. This was not a matter of public emergency,” he claimed.

He further claimed that the decision from the impeachment before the Parliament to the empanelment of the bench was a systematic violation of the constitution.

"Even though the Gen-Z were abducted, the substantive CJ did not appoint a bench to hear cases on a Saturday or on Sunday,” argued Kibe.

He said that in the era of technology, Chief Justice Martha Koome could not assign her deputy, Philomena Mwilu, to perform her office's functions.

Lawyer Ndegwa Njiru, also for the five petitioners, claimed that the State and August House had not controverted the allegations.

 In the meantime, lawyer Gordon Ogada argued that the CJ and the DCJ were given clear mandates.

 While supporting the application for the Judges to down their tools, lawyer Elisha Ongoya argued that the power to appoint a bench is not administrative but a constitutional duty.

“We sat in this court this morning where my lord says that in virtual system we can sit anywhere, at any time or any day. Can the CJ be virtually absent, wherever she is at home, or wherever she is, the answer is no. Is the CJ disabled, no. The DCJ has no grounds to empanel a bench,” argued Ongoya.

 According to Ongoya, the DCJ ought to have filed her directions in the judiciary’s system.

“There are no directions from the e-filing system from the DCJ. If the DCJ makes such a consequential move, that is a matter that she needs to lodge it in the CTS, provide the reason for taking the role,” he said.

Senior lawyer Paul Muite claimed that Mwilu sat in the middle of the night on Saturday. At the same time, he argued that the bench's sitting on a Saturday was also a gross violation of the Constitution.

“This litany or irregularities contaminates this bench. My lords and ladyships should down your tools. When this bench sat in our case, this bench said the earliest date was October 29 and now this bench has found time to now hear the cases,” argued Muite.

According to Muite, the bench was empaneled to set aside the orders freezing the impeachment process.

On the other hand, the AG, National Assembly, Senate, Kithure Kindiki, and President William Ruto urged the bench to stay put.

Wanjiku Kamotho, another lawyer, said that she only became aware of the cases being mentioned on television despite being a party in the case. She further claimed that she was not informed that the bench sat on a Saturday.

“We know that the courts sit on Mondays to Fridays from 8 am to 5 pm,” she said.

Senior lawyer John Khaminwa narrated that before 2010, lawyers would approach judges even at night. However, he said that Judges only sit during the day after the current constitution.

“What happened is completely wrong. Nobody has alleged that the Chief Justice was unwell, nobody has alleged that the Chief Justice was on leave,” he argued.

Prof. Githu Muigai, for the AG, urged the court to dismiss the applications. The senior lawyer said that Kenyans had a right to have continuity in government and a stable administration.

“The people of Kenya have a public interest in maintaining a stable government. That role is underpinned in ensuring continuity in government, be it the Judiciary, the Executive, and Parliament,” argued Githu.

The professor said that the DCJ had powers to appoint a bench. According to him, if she can swear in the president, assign Judges, and even appoint a bench to remove a president, then she has the power to appoint benches to hear cases.

He asserted that the DCJ, as a deputy, can carry out the functions of her boss.

Senate’s lawyer, Prof. Tom Ojienda, argued that the removal from office by the upper house was final. According to him, the orders issued had been overtaken by events. He said that the DCJ was exercising her powers as donated by the CJ.

“These orders were issued after the impeachment by Senate,” said Ojienda.

 National Assembly’s lawyer, Paul Nyamodi, argued that Rigathi and the four petitioners raised aspersions to buy time as they enjoyed orders freezing the impeachment process.

 “The allegation of concerns of partiality without tangible grounds labelled against this Court is made to gain some under advantage over the Respondents herein by the Petitioner and a delay tactic and or interruption of the proceedings of this Court. The applicant is therefore unwittingly engaging in an unjustifiable act of forum shopping in the most crude form,” argued Nyamodi.

The senior lawyer added that the recusal, as presented, was based on an unsubstantiated allegation.

He claimed that the petitioners were seeking to prevent the court from conducting its judicial function.

“Your empanelment was in order. The application dated October 21, 2024 as drawn is therefore frivolous, vexatious, bad in law and amounts to an underhand means of frustrating the hearing of the first application seeking to stay the implementation of the stay orders granted in this matter,” he said.

Another National Assembly lawyer Eric Gumbo told the court that the application for Judges to withdraw from the case was unjustified as the parties were aware of the applications filed on Friday.

He said that the court declined to issue orders but directed that the cases should be heard on October 22.

“Why is it that it is okay for them to get orders, and when we get orders for hearing, it is not justice,” argued Gumbo.

He argued that the court did not need to invite parties when considering the AG and the August House applications.

Gumbo asserted that the DCJ had reconstituted a bench that Justice Koome had already constituted.

He claimed that the opponents were casting aspersions on the DCJ and the CJ.

“ This is meant to create a negative image, which I suppose will be used at a later stage,” said Gumbo.

George Murugara also appeared before the National Assembly. He said the law requires the CJ to assign a file, and the DCJ can perform the same function.

“The DCJ did nothing wrong,” he said.

Senate speaker Amason Kingi’s lawyer, Peter Wanyama, also backed the dismissal of the application. He said Gachagua ceased to be in office immediately after the Senate removed him. According to him, courts erred by issuing the orders.

He said there was nothing wrong in considering applications to set aside the orders and fast-track the same.

President William Ruto's lawyer Adrian Kamotho argued that Judges can sit any time and any Judge could be assigned to sit by the DCJ.

"In a nutshell, i wish to point out that in a hurry to cme to court, the petitioners erroneously enjoined the President of the Republic of Kenya. The Supreme Court ordered the President cannot be sued.It is an order, he said," argued Kamotho.

He claimed that Gachagua and other petitioners wanted to halt the country into a crisis.

" What would happen when there is a vacancy in the office of President?" he paused adding that currently Kenya has no Independent Electoral and Boundaries Commission (IEBC) and there is no Deputy President.

The afternoon’s court session was equally heated just as the morning one.

Justices Ogola, Mugambi, and Mrima directed that the three files before the court be consolidated.

The order did not go well again with Muite, Njiru, and Kibe.

Muite said that the bench should note that the Judges did not hear them before making the decision.

Justice Ogola said they had relied on rules former Chief Justice Willy Mutunga formulated to consolidate the cases.

Njiru and Kibe rose and argued that their issues were different.

In response, Prof. Githu Muigai, who represented the Attorney General, argued that the applications to have the bench withdraw should be heard alongside their plea to set aside Friday’s orders.

Justice Ogola, in the end, gave a firm directive that lawyers should stick to the clock.

“This bench will not be taken in circles. Let this not be a theatre by advocates to derail the process,” said Ogola.

Even the 20 minutes allocated for the principal parties and five minutes for everyone who supported the different arguments was a Tower of Babel.