Gachagua impeachment case: Bench formation row takes centre stage

Impeached DP Rigathi Gachagua and lawyer Paul Muite at the Milimani Law Court on Tuesday, October 22. [David Gichuru, Standard]

The hearing for impeached Deputy President Rigathi Gachagua is ongoing at the Milimani Law Courts in Nairobi.

Gachagua arrived at the courthouse accompanied by his political allies, including former United Democratic Alliance Secretary-General Cleophas Malala, Gathoni Wamuchomba, Njeri Maina, and Embakasi Central MP Benjamin Gathiri, among others.

Two cases—one challenging Gachagua’s impeachment and the other opposing the swearing-in of his replacement—are being heard by a three-judge bench consisting of Justices Fredah Mugambi, Eric Ogola, and Anthony Mrima.

Gachagua is represented by Senior Counsel Paul Muite, alongside Elisha Ongoya, Ndegwa Njiru, and others. 

Three-judge-bench

Before the official hearing began, lawyers representing impeached Deputy President Rigathi Gachagua raised concerns over the legality of the three-judge bench appointed to hear the case.

Citing Article 165, Gachagua's legal team argued that the power to appoint a bench cannot be exercised by the Deputy Chief Justice.

"We will file a formal application to challenge the order made by the Chief Justice," said lawyer Kibe Mungai, who accused the court of bias and questioned the process used by Deputy Chief Justice Philomena Mwilu to appoint the bench.

"The Deputy Chief Justice does not have the authority to appoint judges to the bench. This is unconstitutional. On what grounds was an application by the Executive convened on a Saturday? That is a substantive issue," Mungai argued.

Gachagua’s lawyers focused on the judicial process that followed the Kerugoya court’s order halting the swearing-in of Gachagua’s replacement.

Senior counsel Paul Muite questioned the timeline, asking, "When did the file move from Kirinyaga to the Deputy Chief Justice? When did the DCJ sit late on Friday night to issue directions? Let us address these issues for the sake of the nation. This case is not just about the removal of the deputy president; it's about setting a future precedent."

In response, Justice Eric Ogola defended the court's actions, explaining that the court operates virtually and can handle urgent matters at any time. "The court convened on Saturday. We work online, and most of you are aware that matters can reach us at any time. That is the reality of the new constitution and e-filing. Selective arguments mislead the public," Ogola said.

As the debate over the formation of the bench intensified, Justice Ogola postponed the proceedings to allow Gachagua’s legal team to file a formal complaint.

"This is a serious matter concerning the deputy president. The application challenging this court’s jurisdiction must be filed within one hour, with a response due within the same period. We will reconvene at 2 p.m. to hear the application," Ogola ordered.

The case is unfolding amid calls from President William Ruto for the High Court to dismiss the impeachment cases and transfer them to the Supreme Court.

 Yesterday, one of Gachagua’s lawyers criticised the three-judge bench for not halting the impeachment process, despite a set timeline to review applications from Parliament and the Attorney General.

The lawyer called for an investigation into how a petition from one lawyer reached the judges without going through Chief Justice Martha Koome.