Ogola-led bench declines Gachagua’s recusal plea after embarrassing affidavit » Capital News
NAIROBI, Kenya, Oct 25 – The bench empaneled to hear petitions arising from Rigathi Gachagua’s impeachment as Deputy President and the subsequent appointment of Kithure Kindiki as his replacement has declined to recuse itself.
Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi dismissed the application in a ruling on Friday, a day after the bench declined a bid by Gachagua’s lawyers to expunge misleading claims in an affidavit supporting the application.
“The application for recusal is hereby disallowed,” Ogola declared, adding that the bench had extensively discussed the matter, including allegations of bias raised by counsel.
Gachagua’s lawyer sought to delete two paragraphs after respondents flagged their inconsistencies with widely known facts.
One of the contested paragraphs suggested that Dr. Mugambi pursued an LLM under Prof. Kindiki, the Deputy President Designate, at Moi University. However, it became apparent that the institution offered no such program.
The applicants also alleged a recent appointment of Justice Ogola’s wife to a state parastatal by President William Ruto, despite attaching a Gazette Notice indicating that the appointment was made by the Cabinet Secretary for Environment.
In another claim, the applicants linked Justice Mrima to Senate Speaker Amason Kingi, citing the Speaker’s presence at the judge’s wedding in 2021.
The bench stated that the applicants were free to appeal the decision.
The bench further directed petitioners to file amendments to their petitions, if needed, within five days, with respondents required to act accordingly.
Justice Ogola scheduled a hearing on Tuesday, October 29, to consider the Attorney General’s application for review of conservatory orders suspending the impeachment resolution and Kindiki’s assumption of office.
Friday’s ruling marked the third consecutive setback for Gachagua before the bench since the commencement of the hearing, characterized by protracted procedural battles.
‘Appearing under protest’
On Wednesday, Gachagua’s lawyers led by Paul Muite, having recorded their appearance “under protest” from the outset, suffered a setback after the bench rejected an application contesting Deputy Chief Justice Philomena Mwilu’s authority to constitute it.
Justices Ogola, Mrima, and Dr. Mugambi dismissed the application with costs, faulting the 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, arguing that this function is exclusively reserved for the Chief Justice.
“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 it,” the bench held.
The Justice Ogola-led bench also dismissed arguments that it convened unconventionally on a 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 of 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 a certificate of urgency,” the judges held.
“It is not unusual for courts to issue directions upon the filing of an application or outside routine work hours when circumstances so require,” the bench ruled.
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