CoA rejects Gachagua’s bid to restrain Ogola bench over flawed application » Capital News

NAIROBI, Kenya, Oct 31 — The Court of Appeal has declined to grant temporary orders suspending proceedings before a three-judge bench hearing petitions arising from the impeachment of Rigathi Gachagua as Deputy President.

Presiding Judge Patrick Kiage, sitting together with Justices Aggrey Muchelule and George Odunga, declined a last-ditch effort by Senior Counsel Paul Muite shortly after delivering a ruling on Thursday suspending its own proceedings until November 6.

“The matter is urgent and has huge public interest and the members of the bench, though engaged in other matters in the course of next week, will assemble at 12 noon on Wednesday for the highlighting of submission on the matter,” Justice Kiage stated.

The bench suspended its hearing of Gachagua’s appeal against the High Court decision affirming Deputy Chief Justice’s authority to empanel benches after a section of respondents told the court the applicant had not served all respondents in the consolidated petition from which the appeal arose.

The respondents, including the Attorney General, National Assembly and the Senate, told the Court of Appeal bench to enforce its rules by requiring applicants to serve all parties.

Responding to a question from Justice Muchelule, advocate John Khaminwa appearing for Kituo Cha Sheria — a rights lobby — said he was ready to argue the “simple” application lack of service notwithstanding.

The Justice Kiage-led bench however rejected Khaminwa’s proposal and ordered the applicant to amend his application accordingly and serve all parties by noon on Friday.

The bench further ordered respondents to file responses by Monday, November 4, ahead of a session to highlight oral submissions on November 6.

Vacation conservatory orders

The development at the Court of Appeal came even as parties awaited a ruling on whether the High Court will vacate or extend conservatory orders impeding Gachagua’s replacement as Deputy President.

Justices Eric Ogola, Anthony Mrima and Dr Freda Mugambi heard applications for Tuesday.

The High Court bench had in its ruling on October 23rejected Gachagua’s application contesting Deputy Chief Justice Philomena Mwilu’s authority to constitute it.

The bench dismissed the application with costs after faulting lawyers representing the ousted Deputy President for “playing to the gallery”.

The court rejected an assertion by Gachagua’s lawyers that Mwilu lacks the constitutional authority to constitute benches under Article 165 (4) of the Constitution.

“It is therefore our finding that the constitutional function of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform,” the bench held.

The Justice Ogola-led bench also dismissed arguments that it convened unconventionally on Saturday to invite parties for an inter-partes hearing on Tuesday.

“We hold that the accusations made by the applicant against this bench are entirely without merit,” the judges affirmed.

The bench noted that the electronic Case Tracking System (CTS) allowed for seamless handling for urgent matters and that lawyers are well aware of the practice.

“There was nothing unconventional in the manner in which this bench dealt with the two applications filed under certificate of urgency,” the judges held.

“It is not unusual for courts to issue directions within the filing of an application or what would be termed as outside the routine work hours of the court when circumstances do so require,” the bench ruled.

Sabotaging the court

The bench further held that the court can issue directions on an application without the need for a formal sitting.

The court also took exception with the conduct of petitioners led by Senior Counsel Paul Muite, representing Gachagua, over an apparent scheme to derail proceedings.

The bench wondered why Muite’s team would consider their petition urgent when seeking stay orders, ex parte, but seek to slow its hearing once they do so.

“It is now apparent that the applicants no longer perceive the urgency in this matter. Instead, they seek to cast aspersions on this court for addressing the matter with the necessary expedition,” the bench stated.

“Such conduct is contradictory and undermines the very urgency that the applicants had initially invoked.”

Gachagua launched the application contesting Mwilu’s role in empaneling the bench on October when the court convened an inter-partes hearing, scuttling proceedings intended to consider an application for review of orders halting the swearing in of Interior Cabinet Secretary Kithure Kindiki as Deputy President.

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