DP Gachagua seek court orders to suspend Senate impeachment proceedings

Deputy President Rigathi Gachagua has called upon the High Court to issue interim orders to suspend the Senate’s impeachment proceedings against him scheduled for Wednesday this week as the Chief Justice appoints a three-judge bench to determine his petition challenging impeachment.

Chief Justice Martha Koome has since, picked justices Eric Ogola, Anthony Mrima, and Frida Mugambi to hear and determine five petitions all challenging the impeachment process against Gachagua arguing it was flawed.

However, during today’s mention of one of the 26 petitions filed to block Gachagua’s ouster, the DP was accused of forum shopping in seeking court orders to save him from being impeached by the Senate.

Lawyer Paul Nyamodi who is acting on behalf of Parliament, both National Assembly and Senate noted that there are similar matters pending before the court filed by the petitioner.

However, Gachagua’s lawyer Paul Muite argued that the petition before the court arose when the National Assembly passed the resolution to the Senate, hence the impeachment is in two phases.

Muite also said it is unfair to accuse the DP of forum shopping.

At the same time the respondents in the case including Senate Speaker Amason Kingi and the Senate want the court to determine the issue of jurisdiction before hearing the matter.

According to them the court lacks the jurisdiction to hear and determination the case filed by Gachagua.

Muite said the DP’s constitutional rights have been violated and it’s only the court that can save him from impeachment. In an application filed under a certificate of urgency, Gachagua lists at least 10 grounds he believes were used to aid what he terms a shambolic, unfair and a vicarious assault on him.

He says the charges supported by 282 MPs in the National Assembly were unsupported allegations, hearsay and outright lies.

The appointment of the three-judge bench comes hot on a fresh application seeking to stop the senate from debating and impeaching him on session scheduled on October 16 and 17,2024.

Gachagua’s leagal team led by Muite argued that the impeachment process initiated by the National Assembly was flawed, highlighting that Gachagua was not afforded a fair hearing due to the limited timeframe imposed just 12 days.

Muite emphasized that the standing orders, which guided the impeachment, contravened constitutional requirements for due process.

He has argued that the public participation process mandated by law was insufficient and merely a sham, depriving Kenyans of the opportunity to engage meaningfully in such a critical process.

The lawyer submitted that the data on public participation was intermeddled with in that some constituencies showed more numbers as opposed to the position on the ground.

Muite noted there is massive discrepancies with the data collected from the constituencies and the tabulation presented in Parliament.

“For public participation to succeed the DP should have been an opportunity to respond on the 11 allegations before the question were put to the public to respond.” Muite submitted.

He said the process is questionable and it’s a resounding no that it was fair and just.

In seeking conservatory orders, Muite urged the court to temporarily halt the National Assembly’s resolution and the Senate’s impeachment proceedings, allowing the court to thoroughly examine the significant issues raised in their main petition.

“We plead you grant us conservatory orders that you temporarily halt the resolution of the National Assembly and the impeachment in the Senate to afford the court the opportunity to interrogate the weighty issues at hand.” Muite told the judge.

On the question of public participation say under Articles 25 (C) and 50 of the constitution require everyone to be given a fair trial.

“Parliament exercising a quasi judial authority is compelled to ensure that the Deputy President got a fair hearing which he did not.” Muite said.

He urged justice Mwita to appreciate Parliament has since forward it’s resolution to the senate for further action and his client is set to appear on Wednesday.

Muite emphasized that the new petition arose from the National Assembly’s resolution to impeach Gachagua.

“We are saying that Gachagua’s constitutional rights have been violated in that the process has gained momentous and is now pending in the Senate.” Muite told the court.

The Senate and its Speaker Amonson Kingi vehemently opposed the grant of conservatory orders prohibiting them from examining the resolution of the national assembly to impeach Gachagua.

Through Mercy Thanji, Kingi and the senator said the process is not yet over as Gachagua will be given an opportunity to defend himself against the 11 allegations of gross misconduct and corruption.

“The Deputy President has not proven that this petition shall be rendered nagatuory if Senate is allowed to proceed with it’s constitutional mandate.” Thanji said.

She added that it’s is in the public interest that Senate determines whether Gachagua is fit to hold a public office.

“If Senate is injuncted then the true about the allegations about the DP will not be known. Let the legistrative proceedings take their normal cause.” Thanji submitted.

She urged the court to allow the DP an opportunity to appear before the Senate to answer and defend himself against the allegations.

“Once the Senate and National Assembly are done with the impeachment process. It is then the Deputy President can approach the court to question it’s validity.” Thanji told the Judge.

Thus she said the lawsuit by Gachagua is premature and should be struck out with cost.

On its side, the National Assembly and it’s speaker Moses Wetang’ula opposed the plea of conservatory orders, accusing Gachagua of forum shopping due to his filing of a similar application seeking related reliefs.

Lawyer Paul Nyamondi argued against Gachagua’s claim that his recent petition is similar with the one previously referred to Chief Justice Koome to empanel a bench.

Nyamondi urged the judge not to grant the orders since similar applications totalling to 24 have been filed either by Gachagua or his proxies.

He also asserted that the court has no jurisdiction since the Senate’s process is not yet complete.

He also pointed out that the Senate’s timeline is constrained by Article 145 of the Constitution.

Responding to concerns raised by lawyer Muite about the rapidity of the National Assembly’s resolution, Nyamondi maintained that the impeachment proceedings are being conducted within constitutional parameters.

Tomorrow, the High Court will determine whether the Senate can proceed with impeachment hearings against DP Gachagua.

The Deputy President is set to defend himself before the Senate on Wednesday, facing 11 charges approved by 282 MPs in the National Assembly vote. Gachagua maintains that the impeachment is politically motivated and expressed confidence that the judiciary will deliver a fair ruling.

Justice Chacha Mwita reserved his ruling after Senior Counsel Paul Muite and lawyer Tom Macharia, representing the petitioner, argued that the National Assembly’s impeachment process was unconstitutional due to the lack of proper public participation.

The legal team contended that the public was denied their democratic rights, with participation purportedly conducted only at county headquarters for a single day, while the impeachment vote proceeded simultaneously at the National Assembly on October 8, 2024.

They further argued that the impeachment motion was passed late in the evening and immediately transmitted to the Senate, violating constitutional provisions.

Chief Justice Martha Koome has already appointed a three-judge bench to hear Gachagua’s petition challenging the impeachment process.