A three-judge High Court bench has recently declined to disqualify itself from hearing and determining the case filed by former Deputy President Rigathi Gachagua.
The bench ruled that the constitution granted Deputy Chief Justice Philomena Mwilu the powers to select a bench of judges to determine a case.
While passing the ruling, Justice Mrima referred to the Constitution which he stated granted authority to the Deputy Chief Justice to act on behalf of the Chief Justice on distinct occasions such as the one challenged by Gachagua’s legal team.
“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. In this case, we do not find any fault in the honourable DCJ assigning judges to sit in this bench more soon when the honourable Chief Justice has not raised any red flag.’’
The bench also dismissed Senior Counsel Muite’s allegations that the three-judge bench was constituted at night without a formal sitting.
According to Justice Fridah Mugambi, the transfer of documents by the judicial officers could have as well been done using electronic means and not necessarily physical means as alleged by Gachagua’s legal team.
The impeached deputy president through his legal team had protested the decision by the three-judge bench to hear and determine the case.
The legal team argued that the only person who could appoint a bench of judges to hear and determine a petition filed by Gachagua was Chief Justice Martha Koome.
