The High Court has temporarily suspended the implementation of the Senate’s resolution upholding the impeachment against the former Deputy President Rigathi Gachagua.
Justice Chacha Mwita also stopped any appointments of a replacement.
Mwita further certified the case as raising substantial questions of law and public interest.
Consequently, he directed the file to be placed before the Chief Justice Martha Koome to appoint a bench of an uneven number of judges to hear the matter.
Gachagua obtained the order to stop planned swearing in of his predecessor.
This triggered another crisis with some government officials mulling appealing the order.
“That, in the meantime, due to the issues raised in the petition and application, as well as the demonstrated urgency, a conservatory order is hereby issued to stay the implementation of the Senate’s resolution upholding the impeachment charges against the petitioner, the Deputy President of Kenya. This order includes a stay on the appointment of his replacement until 24th October 2024, when the matter will be mentioned before the bench appointed by the Chief Justice for appropriate orders and actions,” the order said.
He said any disobedience or non-observance of the order of the court served herewith will result in penal consequences to you and any other person(s) disobeying and not observing the same.
“That due the the significance of issues raised in the petition and application, I certify this matter as raising substantial questions of law and public interest and therefore fit to be heard by a bench of uneven number of judges to be appointed by the Hon. The Chief Justice. The file be placed before the Hon. Chief Justice immediately for consideration in that regard.”
Gachagua had asked the court to bar President William Ruto from nominating a person to fill the vacancy in the office of the Deputy President following his impeachment from office on October 17, by the senate.
Gachagua also wants the National Assembly be restrained from discussing, vetting, voting and/or approving the nomination by president Ruto made on Friday.
The National Assembly voted to name Interior Cabinet Secretary Kithure Kindiki as the successor of Gachagua.
The House met on Friday for a special session to make the progress.
In the petition filed under certificate of urgency, Gachagua alleged that both the National Assembly and the Senate conducted themselves in an unconstitutional manner, violating his right to a fair hearing.
“The National assembly and the senate conducted themselves in an unconstitutional manner and denied the applicant the right to a fair hearing. His rights under article 50(1) of the constitution were breached,” argued Gachagua.
“The applicant further invites the court to declare Standing Order 64 of the national assembly limits the applicant’s right to a fair trial.”
Gachagua through his lawyer Paul Muite claimed that the charges against him were neither substantiated nor supported by evidence.
He further argued that both the National Assembly and Senate introduced new and extraneous matters that were not part of the special motion presented in the national assembly, undermining the fairness of the process.
Gachagua is now calling for judicial interpretation of Article 145 and article 150 of the constitution, which outline the legal framework for impeaching the deputy president and the procedures surrounding the office.
He claims that these articles were not properly adhered to during the proceedings, further invalidating the impeachment.
The former DP wants the court to determine the constitutionality of the impeachment process and whether the lack of public participation, failure to follow due process, and introduction of new charges violated the law.
“it would be prejudicial to the petitioner to allow the respondents to gazette the removal of the petitioner as the deputy president by way of impeachment in a manner that stands contrary to basis constitutional provisions before the petition is heard and determined,” read the court documents.
According to Muite, there is a demonstrated urgency to remove the current Gachagua and install a replacement, a move he argues is being done with a view to frustrate Gachagua.
“The National Assembly has issued a notice for a Special Sitting with a high likelihood that the business of the day would be to consider and vote on a nominee for the deputy president, paving way for assumption of office, reads part of the petition.
He argues that “the senate is required by law to act as an impartial arbitrator and the petitioner’s right to have any dispute determined before an independent and impartial body in considering whether the charges before it have been substantiated or not.”
