The High Court Tuesday ordered the former Deputy President Rigathi Gachagua to file an application challenging the empanelment of the three judge bench constituted to hear three applications challenging the implementation of the senate’s resolution upholding the impeachment and appointing of a replacement.
Justices Eric Ogolla, Anthony Murima and lady Justice Frida Mugambi ordered Gachagua to file the application with one hour pending the hearing set for 2 pm Tuesday.
When the matter came up for hearing on Tuesday, Gachagua challenged the validity of the bench empaneled to hear matters involving the executive, questioning the constitutionality of the process.
Through his legal team, Gachagua argued that the Chief Justice’s (CJ) power to appoint a bench under the Constitution is “a substantive power that cannot be delegated” to the Deputy Chief Justice (DCJ).
His legal team took issue with a special sitting that was convened on Saturday, questioning its legality.
They argued that the Saturday sitting allowed an application by the executive to be heard under questionable circumstances.
“On what basis was an application by the executive heard on a Saturday?” Gachagua’s lawyers asked.
Gachagua took issue with the fact that no official communication has been received indicating that the bench had been empaneled to hear the consolidated matters.
“We expected a written communication that this bench had been appointed to hear these matters,” Gachagua argued.
While the CJ had communicated the appointment of the bench on October 14, to hear six other files, they argued, “no communication was given for the files from Kerugoya court”.
Gachagua accused the court of potential bias, arguing that “the state appears to be prioritized,” as was common under the old constitutional framework.
He argued that the right to fair hearing is being sacrificed.
The legal team led by Elisha Ongoya, Muthomi Thiankolu and Ndegwa Njiru told the court that they would file a formal application to “discharge the orders made during the Saturday sitting,” arguing that any orders issued by a bench improperly constituted should be vacated.
“If you were improperly constituted then you cannot make any further orders .Let the application be placed before you then party can formally address the issue,” Ongoya argued.
Lawyers representing the National Assembly and the Senate however challenged Gachagua’s contention noting the Deputy Chief Justice is constitutionally permitted to deputize the Chief Justice.
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