A three-judge bench dismissed an application seeking their recusal from hearing a petition challenging the constitutionality of Deputy President Kithure Kindiki’s appointment.
The bench comprising Principal Judge Eric Ogola, Justice Antony Mrima and Justice Florence Mugambi held that petitioner Joseph Enock Aura had failed to prove any reasonable apprehension of bias and therefore lacked grounds to demand their withdrawal from the matter.
“Accordingly, we find that the applicant has failed to establish a reasonable apprehension of bias on the part of this Bench. The application dated 1st October, 2025 is therefore dismissed,” ruled the court.
Aura had filed a Notice of Motion dated October 1, 2025, accusing the bench of discriminating against him by allowing his petition, Petition E586 of 2024, to proceed separately instead of being heard as part of the wider consolidated petitions challenging last year’s transition in the Office of the Deputy President.
But the court faulted Aura for what it termed “ demonstration of bad faith and lack of candour”, saying that it was the petitioner himself through counsel Harrison Kinyanjui who had requested that his case be deconsolidated earlier this year.
“The segregation of the petition was not a unilateral act of the Court but a direct consequence of the applicant’s own request,” the judges ruled.
Petition E586 of 2024 is one of several cases filed after the impeachment of former Deputy President Rigathi Gachagua and the appointment and swearing-in of Prof. Kithure Kindiki as his replacement.
The petitioner, Aura, is seeking to invalidate Kindiki’s appointment, arguing that the entire transition violated the Constitution and several mandatory procedures.
According to the petition, Aura contends that Kindiki did not formally vacate office as Cabinet Secretary for Interior before he was nominated Deputy President, in violation of constitutional requirements prohibiting the simultaneous holding of two state offices.
He argues that there was no gazette notice announcing Kindiki’s resignation, nor any formal transition process before nomination and vetting.
The petition claims that the nomination, approval and swearing-in of Kindiki were conducted in a manner that lacked transparency, breached public participation requirements, and ignored constitutional safeguards meant to regulate transitions into high office.
Aura further states that the swearing-in ceremony held on November 1 2024 was done without properly declaring a public holiday, rendering it unconstitutional.
The petition therefore seeks declarations that Kindiki’s appointment, parliamentary vetting, and subsequent swearing-in are null, void and invalid, and that the office should revert to its previous holder pending lawful procedure.
In his recusal application, Aura claimed that the bench had “irrationally isolated” his petition from the others, allegedly placing him at risk of being unfairly subjected to technical objections such as res judicata.
But the judges rejected this argument saying Aura’s petition was initially consolidated with the others on January 23, 2025, on the bench’s own directions.
On May 29, 2025, it was Aura himself who sought deconsolidation to allow the case to proceed separately because he argued it raised “unique issues” requiring a larger bench.
The Court granted that request for the applicant’s own benefit, not out of bias or discrimination.
The court said the test for recusal is objective, It must be based on what a reasonable, fully informed observer would conclude, and not on a litigant’s personal dissatisfaction, fears or perceptions.
They said that recusal cannot be used to “judge-shop” or pressure courts into reorganizing benches to suit litigants’ preferences.
“The circumstances under which a judge or
judicial officer should recuse themselves from a case require a high threshold. These instances must be approached objectively, with careful consideration, rather than in a simplistic or routine manner,” said the court.
“Recusal directly impacts the administration of justice and a judge should not withdraw from a case simply for convenience sake.”
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