Gachagua in fresh push to keep judges out of impeachment case

Impeached Deputy President Rigathi Gachagua during the hearing of cases challenging his impeachment at Milimani Law Courts in Nairobi on October 22, 2024. [David Gichuru, Standard]

An alleged friendship between a High Court Judge and Senate Speaker Amason Kingi was one of the fresh claims raised by Deputy President Rigathi Gachagua to push for recusal of the judges from his impeachment case.

Gachagua also cites an appointment of another judge’s spouse to a government body as another claim that he says, should inform the judges recusal from the case.

It was alleged that Justice Antony Mrima and Kingi were close friends and the latter attended the former’s wedding.

At the same time, it was alleged that Justice Eric Ogola’s wife had been appointed to a water board by President William Ruto.

The government side, however, termed the claims as too flimsy and splitting hairs in order to derail the hearing.

Lawyer Githu Muigai, for the National Assembly, said that the claims were not backed by evidence but were mere human being interactions.

He asserted that there was nothing to impeach the judges’ reputation or professional oath in the twin applications.

Gachagua on Thursday backed two new applications filed in a renewed bid to have three judges appointed last week to hear his impeachment cases to withdraw.

The applications for recusal were filed by Aburi Namenya, David Munyi, Peter Gichobi, Grace Muthoni, Clement Muchiri, and Edwin Munene.

The embattled DP did not file any court papers to support the applications.

Instead, his lawyers Paul Muite, Elisha Ongoya, Victor Swanya, Faith Waigwa and Tom Macharia opted to respond orally.

Lawyer Macharia said that photos from Kingi’s social media account were showing him gifting Justice Mrima during a wedding and indicating that they were long-time friends.

According to him, it was an issue for the speaker to attend the wedding. Instead, the Judge failed to disclose that he knew Kingi.

Macharia said that Gachagua was in court because the Senate removed him from office.

“Recusal would be the only thing that would do justice not only to the applicant but the court itself,” argued Macharia.

His other lawyer Paul Muite said the case was important for the country and needed Judges who are perceived to be neutral.

“For the sake of this country, today and moving forward, those are issues that should be adjudicated by a bench that has no bias apparent or alleged,” he said.

In the separate applications, Aburi, who is representing lawyer Kibe Mungai, claimed that the judges could not sit as they had not declared a conflict of interest.

Aburi alleged that Justice Mrima is a close associate of Senate speaker Amason Kingi. His lawyer said there was photo evidence to show that Kingi attended Justice Mrima’s wedding and referred to him as a long-time friend.

At the same time, he alleged that Justice Ogola had not disclosed that his spouse Florence Oluoch is a member of the Kenya Water Towers Board, having been appointed by the President.

Kibe claimed that the petitioners’ apprehension was that the bench was empaneled in order to lift the orders.

According to him, judges had already taken a position against those challenging the impeachment process.

“This court answered evidential issues raised in the case. This amounted to this case entering the arena of the dispute between petitioners and respondent.

“A judge cannot be a judge in his own case.The judgment dealing with other issues amounted to pre-empting the issues we had filed. We have simply been responded to by the court itself. Judges are responding to our issues in advance. As far as we are concerned, we were accused of playing to the gallery,” he said.

Kibe argued the crust of his client’s case was whether an Independent Electoral and Boundaries Commission (IEBC) could have cleared Kindiki without commissioners. He said, they fear that the court will not give a fair verdict.

In their application, Munyi, Gichobi, Muthoni, Muchiri and Munene claimed the Chief Justice did not expressly direct the bench to consider the files  from Kerugoya on a Saturday. Their lawyer Ndegwa Njiru said it was an indicator that they were not neutral arbiters in the dispute.

“We were condemned in a wholesale. The court failed to take notice of delegated authority. Had it not been for the bias that the court had for the petitioners, such would not have escaped the mind of the court,” argued Ndegwa.

He added that the judges had indicated they were concerned about the manner in which the petitioners’ lawyers were prosecuting the case.

“The court has taken a position as against the petitioners and the position is prejudicial to the petitioners and erodes their confidence to continue to appear and make submissions before this court,” he continued.

According to him, the bench had declined a plea by Gachagua’s lawyers on October 18, to allow them to approach the bench the following day when the Senate removed him from office.

The lawyer claimed that word out there was that the bench was a conveyor belt, and that it had been set up for a particular purpose.

He further stated that they indicated that the only available date for the court was October 29.

Njiru asserted that it was unclear how the court pushed Gachagua’s case further despite its urgency while bringing the State’s applications closer despite clearly indicating that it had no other dates before the 29th.

“It is therefore quite strange that the bench nonetheless found time to grant orders at the request of one of the litigating parties, issuing orders not only on a day which Courts are not meant to be sitting but also without any evidence of the Chief Justice having authorised the sitting on a Saturday as required by law,” he said.

The lawyer’s prayer to expunge two paragraphs that indicated that Justice Mrima was a close associate to Kindiki and that Justice Mugambi was his law student at Moi University was rejected by the court.

Senior lawyer John Khaminwa who appeared for Katiba Institute argued that there was no need for judges to stay put in the case if the parties had no confidence in them.

“Walk out! You are not the only judges in the country… Majority of the people believed that the case before you has been engineered by politics. When they come to the judiciary, they expect people they cannot suspect at all. If I was a Judge, I would say as Khaminwa, I would walk out,” he submitted.