Humour, tension as Gachagua's impeachment battle resumes

Kenyans will be treated to a fresh round of theatre today as lawyers engage in a contest of wits, humour, and mastery of King’s English, with the three-judge bench resuming hearing the case of impeached Deputy President Rigathi Gachagua.

Since the onset of the case last Tuesday, the courtroom has transformed into a stage where lawyers, dressed in formal attire, exchange not only legal jargon but also humorous jabs.

Phrases like “my lords and lady justice” echo through the courtroom, punctuated by playful banter among senior and junior counsels.

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As the court sessions resume, the three-judge bench will hear two urgent applications filed by the Attorney General and Parliament’s to lift court orders preventing the swearing-in of Interior Cabinet Secretary Kithure Kindiki as Gachagua’s replacement.

Attorney General Dorcas Oduor seeks to vacate these orders, contending that the Deputy President’s position is now vacant due to Justice Richard Mwongo’s ruling last week at Kerugoya High Court in a petition filed by David Munyi and Peter Kamotho. 

Justice Mwongo ruled that Kindiki should not take office pending the hearing and determination of the petition.

He also directed that the file be forwarded to Chief Justice Martha Koome to appoint a bench of High Court judges to handle the matter.

Interim orders

According to Oduor, it was unfair to issue the orders without first hearing the government.  

“The Constitution of Kenya, 2010 does not envisage a vacuum in the office of the Deputy President and as such it is in the interest of justice that the interim orders herein be set stayed, varied, and /or set aside. It is prejudicial to the people of Kenya and the entire republic if the office of the Deputy President remains vacant as a result of the ex-parte interim orders,” the application filed by the Solicitor General Shadrack Mose reads in part. 

The National Assembly through lawyer Eric Gumbo has also pleaded with the court to lift the orders. It argued that the orders issued by the courts had been overtaken by events as Kindiki’s name had already been approved by MPs and Speaker Moses Wetang’ula had gazetted his name by the time the judges were intervening.  

He also argued that the orders were issued without ascertaining whether Justice Mwongo had powers to entertain cases concerning the impeachment process. 

Gumbo claimed that the orders had created a constitutional crisis as Gachagua ceased to hold office on October, 17, 2024.

Crisp suits

Last week’s proceedings was a spectacle, and the legal minds did not disappoint. Lawyers, clad in crisp suits and armed with sharp wit, turned the courtroom into a vibrant arena where legal arguments met an unending dose of humour. 

The first day unfolded with procedural disputes and palpable tension, especially with Gachagua’s presence raising the stakes. Arriving without bodyguards, like any ordinary Kenyan, he sat in a crowded courtroom alongside lawyers, journalists, and curious citizens eager to witness the outcome of this unprecedented case.

Tension filled the courtroom as petitioners and State lawyers clashed and their arguments echoing off the walls.

Senior counsel Paul Muite led Gachagua’s defence alongside, lawyers Elisha Ongoya, Kibe Mungai and Ndegwa Njiru challenged the legitimacy of the three-judge bench constituted by Deputy Chief Justice (DCJ) Philomena Mwilu.

The lawyers also questioned why other files, certified as urgent, were not before the court.

Muite began with an impassioned plea, peppered with humour.  

“Your lords and lady justice,” he declared, “we find ourselves here under protest regarding the decision on how this three-judge bench was constituted and the bench’s Saturday night plans!” Muite remarked

The courtroom erupted in laughter, cutting through the tension as his words danced between legal formality and playful jest.

Gachauga and the State lawyers engaged in a friendly yet fierce exchange, often punctuating their arguments with humorous barbs.

Muite and his team challenged the legitimacy of the three-judge bench comprising Justices Eric Ogola, Freda Mugambi, and Anthony Mrima, accusing it of being hastily constituted and thus lacking the authority to preside over the case.

He challenged the authority of the DCJ to appoint a bench without the express permission of Chief Justice (CJ) Martha Koome.

Lawyer Kibe added that they were taken aback by the DCJ’s night decision to expedite the cases.

Four hours

“It was unconstitutional for the Deputy Chief Justice to sit at night to appoint a bench, especially since the Chief Justice has not sat at night for similar cases, even in instances of abduction,” argued Kibe, his words laden with frustration. 

Kibe stated that although the law requires the President to nominate a person for the Deputy President’s position within 14 days and the National Assembly to process the nomination within 60 days, this was done in just four hours.

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

He further argued that the process from the impeachment in Parliament to the empanelment of the bench constituted a systematic violation of the Constitution.

This claim created the first major hurdle in the hearings, as the Attorney General, National Assembly, Senate, Kindiki, and President William Ruto argued the bench to remain in place.

Wanjiku Kamotho, another lawyer, expressed her surprise at learning about the cases through television, despite being a party in the matter. “We know that the courts sit from Monday to Friday, 8 am to 5 pm,” she said.

Senior counsel John Khaminwa reminisced that prior to 2010, lawyers would approach judges even at night. “What happened is completely wrong. Nobody has alleged that the Chief Justice was unwell or on leave,” he argued.

Prof Githu Muigai, representing the Attorney General, urged the court to dismiss the applications, emphasising that Kenyans had a right to continuity and stability in government.

“The people of Kenya have a public interest in maintaining a stable government, be it in the Judiciary, Executive or Parliament,” he asserted.

As the hearings progressed to the second day, the courtroom became a battleground of words.

The petitioners sought to challenge the constitutionality of the bench, escalating tensions as lawyers faced off, each determined to outmanoeuvre the other.

However, Gachagua and his copetitioners failed in their initial attempt to have the judges recuse themselves, as the judges found that DCI Mwilu acted within her authority in empanelling the bench.

In their ruling, Justices Ogola, Mugambi, and Mrima admonished Gachagua’s lawyers for casting aspersions against the bench. Justice Mugambi remarked that the lawyers while benefiting from court orders, should not intimidate the court.

On Wednesday evening, the courtroom transformed into a stage for legal wrestling.

As arguments turned heated, the interplay of emotions and intellect intensified.

Khaminwa, a veteran in the courtroom and a master of theatrical rhetoric, took the stage.  He argued that lawyers should be granted sufficient time to present their arguments.

Court procedures

As the arguments heated up, so too did the tension. Khaminwa’s exchanges with Muigai became particularly animated.  

Khaminwa became visibly emotional when Muigai urged him to adhere to court procedures.

“With respect, will you please sit down?” Senior counsel Muigai remarked.

Khaminwa shot back, “With all due respect, I will not sit down! I started practicing law when you were still breastfeeding!” This quip elicited laughter and applause, encapsulating the spirited yet respectful rivalry between the lawyers.  

An adamant Khaminwa insisted that lawyers should have sufficient time to present their argument. ‘‘Let us not allow titles to mean anything,’’ he declared  

Despite the seriousness of the proceedings, the courtroom often erupted in laughter.

Khaminwa, representing Kituo Cha Sheria, noted, “Your Honour, we’re not discussing minutes here; we’re talking about the fate of a Deputy President! This is a national concern!”