Gachagua appeal ruling on DCJ Mwilu’s bench empanelment powers as petitioner file suit on reinstatement of DP privileges

Impeached Deputy President Rigathi Gachagua has filed an appeal at the Court of Appeal saying he is dissatisfied with the ruling delivered last week by a three-judge bench as a petitioner moved to court in Eldoret seeking full reinstatement of privileges to the embattled DP.

According to documents filed at the Court of Appeal, Gachagua says that the ruling that Deputy Chief Justice Philomena Mwilu had powers to constitute the bench is wrong, mistaken, erroneous and based on a grave analysis of the constitution.

The impeached DP now wants the court of appeal to stay the high court proceedings pending the hearing and determination of the application.

“… unless the said orders are issued, any delay shall result in irreparable prejudice of the Applicant’s rights to a Fair Trial & Hearing and ultimate loss of the substratum of his Petition E565 of 2024 which shall ultimately render both the intended Appeal herein and the Petition E565 of 2024 a nugatory, superfluous and moot.” The documents read in part.

Gachagua argue that unless the orders are issued he is that he is apprehensive that the bench shall proceed to hear and determine the interlocutory applications and Petitions herein in total violation of the Constitution.

Gachagua through his lawyers says that the judges declined to extend orders issued in his favour saying that it was despite his efforts and oral applications to have the said interim conservatory orders extended.

‘That the actions and omissions of the impugned Bench are not only, wrong and unlawful but incorrect, and unprocedural.” The application reads in part.

Last week on Wednesday, the justice Eric Ogola led three judge-bench ruled that DCJ Mwilu’s function as the assistant to Chief Justice Martha Koome was administrative.

The three-judge bench consisting of Freda Mugambi, Eric Ogola and Antony Mrima said the Constitution had clearly set out the roles of the DCJ which included substituting the CJ where applicable.

Meanwhile, a petitioner has moved to court seeking orders to compel the government to reinstate benefits and privileges to Gachagua, which were reportedly revoked following his impeachment as Deputy President.

The petition, filed by advocate Pharis Mbugua on behalf of petitioner Joseph Muchai Muiruri at the Eldoret High Court on Monday seeks the reinstatement of Gachagua’s security detail, official offices, and staff pending the resolution of his ouster case.

The petitioner listed the Inspector General of Police, Public Service Commission, Attorney General, National Assembly, Senate, National Assembly and the speaker sof both houses as respondents.

The petition details actions by several respondents, including the denial of access to official offices at Harambee House Annex, restriction of staff services, and withdrawal of Gachagua’s security detail.

The petition, certified as urgent, asserts that subsequent government actions following Gachagua’s impeachment on October 17 contravenes Article 151(2) of the Constitution which “expressly prohibits any disadvantageous variation to the Deputy President’s benefits and privileges while still in office.”

The petitioner faulted the government saying its actions contarvene conservatory orders from the High Court in Nairobi, which temporarily stayed the Senate’s resolution on the impeachment.

The petition also argues that the actions taken by state agencies threaten to compromise public service delivery and violate Gachagua’s right to fair administrative action.

“That the actions of the Respondents are not only unconstitutional, but they also threaten service delivery to the public, and the security of the Interested Party, the Deputy President.” Lawyer Mbugua emphasised.

He argued that unless the “application is heard urgently; irreversible harm is likely to be occasioned to the people or/and to the Deputy President.”

The petition came hours after a after a key ally of Gachagua, Kiambu Senator Karugo Thangwa , said the government had reinstated part of Gachagua’s security detail.

When he appeared publicly on Sunday since reporting the recall of his security, Gachagua had two of his official bodyguards drawn from the elite General Service Unit (GSU) guarding him.

Gachagua had on October 20, 2024 said the withdrawal of his security detail while in the hospital had left him vulnerable.

The ousted DP also had two official cars when he attended a church service at St James ACK Cathedral in Kiambu.

The government also deployed police officers to his private residence in Karen where he had been using a private security firm following the withdrawal of his security, according to Thangwa.

“The state has reinstated part of Deputy President Rigathi Gachagua’s security detail,” the Senator said on Sunday, October 27, 2024.

“In the same spirit, I urge the government to take the next honourable step and reinstate his employees as well.” He added.

Aside from security, Gachagua, whose fate is now resting with the courts had also protested the withdrawal of his workers from his Karen and Nyeri residences.

“I have been here alone without a single officer looking after me. All officers close to me were disarmed and given a warning that they should not be near me. As we speak the Deputy President has no single security officer around him. He is alone.” he lamented.