The constitutionality of the establishment of a three-judge bench by the Deputy Chief Justice Philomena Mwilu on Saturday, October 19, 2024 to hear a case in which impeached Deputy President Rigathi Gachagua is challenging his ouster will be known tomorrow afternoon.
This is after the impeached DP queried the legality of the Deputy Chief Justice empaneling a three-judge bench outside the judicial working hours alleging a plot to deny him the right to a fair trial.
Further, the bench comprising of judges, Eric Ogola, Anthony Mrima, and Freda Mugambi will also rule on whether it will recuse itself from a case challenging the appointment of Kithure Kindiki as Deputy President of Kenya.
This comes as president William Ruto in a petition filed by his lawyers is challenging the jurisdiction of the High Court to hear the impeachment case by Gachagua arguing legal matters touching on the presidency is a function reserved for the supreme court by the constitution.
Both the prosecution and defense teams gathered before the judgesfor what was expected to be an inter-parte hearing of a case in which impeached DP Gachagua is challenging his ouster.
However, the hearing was temporarily halted after Gachagua through his battery of lawyers queried the legality of the Deputy Chief Justice Philomena Mwilu constituting the bench.
In their argument, they claimed the Deputy Chief Justice Mwilu usurped the powers of the Chief Justice.
Additionally, they alleged mischief in the manner in which the bench was constituted on a Saturday outside the normal judicial hours querying the urgency.
However, the lawyers acting on behalf of the respondents including the National Assembly, the Senate, Attorney General, and Kithure Kindiki among others, argued there was nothing peculiar terming their claims as baseless.
Further, Gachagua’s team called on the bench to recuse themselves from hearing the orders of the Kerugoya Court that stopped the swearing-in of Professor Kithure Kindiki as the new Deputy President.
At the same time, president William Ruto through his legal Counsel Adrian Kamotho, wants the impeachment case referred to the Supreme Court arguing the high court lacks jurisdiction to hear the impeachment.
In response, the state’s legal team, represented by Githu Muigai and Tom Ojienda, defended the Deputy Chief Justice’s role, citing provisions that allow her to exercise the Chief Justice’s powers in her absence.
The lawyers also took issue in manner in which the bench sat on Saturday when the constitution does not provide so.
The Attorney General Dorcas Oduor on behalf of Executive, has since filed an application seeking to set aside the conservatory order which application was conversed on Saturday and directions were that the matter proceeds inter parties today.
Other lawyers representing their respective petitioners raised their concern about why their files were excluded from the bench.
The lawyers Danstan Omari and Kibe Mungai told the bench that they had filed theirs petitions on 18th October 2024, and same is not before the bench.
The court would has adjourned this evening a few minutes after 7.00 pm with the judges pledging to give a ruling tomorrow at 3.30 pm on whether the Deputy Chief Justice erred in law and if they were properly constituted to hear the case.