Deputy President Rigathi Gachagua Tuesday suffered a blow after the High Court in Nairobi on Tuesday declined to bar the Senate from hearing the impeachment motion against him.
This now means Gachagua will defend himself against allegations presented as grounds for his ouster when the motion comes to the floor of the Senate on Wednesday and Thursday, in accordance with a programme drawn by the Clerk.
Justice Chacha Mwita said that the process of impeachment should be allowed to continue to its conclusion.
Justice Mwita further referred the matter to Chief Justice Martha Koome to appoint a three-judge bench to hear and determine the case.
He said it will now be upon the discretion of the CJ to task the same three-judge bench she appointed to hear the other petitions touching on the DP’s impeachment, to also hear the petition seeking to bar the Senate from proceeding with the ouster process.
“Having considered the application and the argument by parties on the Constitution and precedent, the prayer for grant of conservatory order is declined,” ruled the judge.
“However, in view of the issues raised in this petition, which also appears to relate to those in Petition E522/2024 which has been certified for purposes of appointing a bench of uneven number of judges to hear, I certify this petition as raising substantial questions of law and of public interest in terms of Article 165 (4) of the Constitution. This file is to be placed before the Honourable Chief Justice to proceed and appoint an uneven number of judges to hear this petition.”
“Give the close proximity of the issues in this petition and those in Petition E522, the Honourable Chief Justice may consider whether this petition may be heard by the same bench appointed top hear Petition E522,” he said.
CJ Koome has already set up a bench consisting of Justices Erick Ogola, Antony Mrima and Dr. Frida Mugambi, to hear five petitions seeking to prevent the impeachment of DP Gachagua.
Gachagua, represented by a legal team led by Senior Counsel Paul Muite, is challenging the impeachment on several grounds, including a lack of public participation
Justice Chacha Mwita said although the constitution grants courts jurisdiction to intervene when theres a threat or violation to human rights, the court must exercise restraint in matters of impeachment .
This process he said has been committed to Parliament which must be allowed to run its course.
“There should be a delicate balance in respective mandates of different arms of government. courts should strive to achieve their balance and respect what parliament is constitutionally required to fulfill,” said Justice Mwita.
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