Impeached Deputy President Rigathi Gachagua has suffered another blow after the Court of Appeal declined to issue orders to stop the three-judge bench constituted by Deputy Chief Justice Philomena Mwilu to determine his fate.
The ruling came after Gachagua had sought the intervention of the court to stop the three-judge bench consisting of justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi, over what his lawyers termed was unlawful empanelment.
In his petition, Gachagua through his lawyers argued that the constitution of the bench was unlawful since Chief Justice Martha Koome did not have an input in it and wanted the Court of Appeal to issue orders stopping the three judge bench from proceeding with the case.
Gachagua’s lawyer John Njomo stated that the rulings were inaccurate, erroneous and were a misinterpretation of the Constitution.
He further argued that the Constitution only accords the Chief Justice the powers to empanel a bench and not any other judicial officer.
“The applicant contends that the stated ruling is based on not only a misinterpretation of Article 165 (4) of the Constitution but also a violation of Articles 25, 27, 47, 48, 50 (1) and 260 as the Constitution accords the power to empanel and assign judges to only the Chief Justice of Kenya…therefore the DCJ has no power to assign and empanel Judge.’’
The 3-judge bench had refused to recuse themselves and they are expected to deliver a ruling on whether Deputy President Nominee Kithure Kindiki swearing in ceremony can proceed.
Justices George Odunga, Patrick Kiage and Agrey Muchelule directed that the case be heard on November 6, this year.
