Nairobi, Kenya | By Michael Wandati | A three-judge bench on Wednesday dismissed Deputy President Rigathi Gachagua’s application challenging Deputy Chief Justice Philomena Mwilu’s authority to form the panel.
The Judges, Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi, rejected the application and imposed costs on Gachagua’s legal team, criticizing them for “playing to the gallery.”
Gachagua’s lawyers argued that under Article 165(4) of the Constitution, only the Chief Justice has the authority to constitute such benches. However, the court ruled that their interpretation was flawed, upholding Mwilu’s authority in the matter.
“It is therefore our finding that the constitutional function of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform,” the bench held.
The bench, led by Justice Ogola, also rejected claims that it had been improperly convened on a Saturday to summon the parties for an inter partes hearing scheduled for Tuesday.
“We hold that the accusations made by the applicant against this bench are entirely without merit,” the judges affirmed.
The bench highlighted that the electronic Case Tracking System (CTS) facilitates the efficient handling of urgent cases, emphasizing that lawyers are fully aware of this practice.
“There was nothing unconventional in the manner in which this bench dealt with the two applications filed under certificate of urgency,” the judges held.
“It is not unusual for courts to issue directions within the filing of an application or what would be termed as outside the routine work hours of the court when circumstances do so require,” the bench ruled.
Court criticizes attempts to delay proceedings
The bench further stated that it is within the court’s authority to issue directions on an application without requiring a formal session.
It also expressed concern over the actions of the petitioners, represented by Senior Counsel Paul Muite on behalf of Gachagua, accusing them of attempting to derail the legal process.
The judges questioned why Muite’s team deemed their petition urgent when requesting ex parte stay orders, yet appeared to delay the hearing once those orders were in place.
“It is now apparent that the applicants no longer perceive the urgency in this matter. Instead, they see to cast aspersions on this court for addressing the matter with the necessary expedition,” the bench stated.
“Such conduct is contradictory and undermines the very urgency that the applicants had initially invoked.”
Rigathi Gachagua filed an application on Tuesday challenging Deputy Chief Justice Philomena Mwilu’s authority in forming the bench, disrupting proceedings meant to review the orders that halted the swearing-in of Interior Cabinet Secretary Kithure Kindiki as Deputy President.
During the hearing, the State Law Office informed the court of its intent to oppose the inclusion of President William Ruto in the suits, citing presidential immunity. Attorney General Dorcas Oduor, alongside former Attorney General Githu Muigai, stated that the President had instructed lawyers to challenge his involvement in the case.
Separately, President Ruto had submitted a preliminary objection at the Kirinyaga High Court, disputing the nomination of Kindiki as Deputy President and arguing that the case was procedurally flawed.
‘Defective case’
Lawyer Adrian Kamotho argued that the challenge to Kithure Kindiki’s nomination as Deputy President, following Rigathi Gachagua’s impeachment on Thursday, October 17, could only be addressed through a presidential election petition at the Supreme Court.
Kamotho further asserted that the court, led by Justice Richard Mwongo, lacked the jurisdiction to hear the case in its current form, labeling it procedurally defective.
“By virtue of Article 165 (5) (a) of the Constitution, the Honorable Court cannot determine the petition as canvassed and/or grant the prayers sought, being a matter reserved for the exclusive jurisdiction of the Supreme Court,” Kamotho pleaded.
“The petition, as drawn and filed, contravenes Article 140 as read together with Articles 148 and 149 of the Constitution, which provisions absolutely vest the Supreme Court with the mandate to determine disputes emanating from a presidential electoral process,” the lawyer argued.
Lawyer Adrian Kamotho invoked Article 143 of the Constitution, arguing that President William Ruto, as Head of State, is granted immunity from prosecution and therefore cannot be subjected to a civil suit.
Article 143(1) of the Constitution specifically provides that the President shall not be prosecuted in any criminal or civil proceedings during their tenure in office. Kamotho used this provision to support the exclusion of President Ruto from the case challenging the nomination of Kithure Kindiki as Deputy President.
Article 143 (1) provides that: “Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.”
Article 143 (2) further states: “Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”
Kamotho further cited a Supreme Court decision in Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment).
