Africa-Press – Kenya. Former Deputy President Rigathi Gachagua The Court of Appeal has ruled that Deputy Chief Justice Philomena Mwilu did not have powers to constitute a bench to hear petitions against the impeachment of Rigathi Gachagua as Deputy President.
A three judge bench of the appellate court presided over by Justices Daniel Musinga (president), Mumbi Ngugi and Francis Tuiyott on Friday ruled that assigning judges is a constitutional duty of only the Chief Justice.
The ruling followed an appeal filed by Gachagua’s lawyers challenging the decision by Mwilu to remit files to the bench of Judges Eric Ogola (presiding), Antony Mrima and Freda Mugambi to hear as consolidated petitions that challenged Gachagua’s impeachment in October last year.
The bench had initially been constituted by Chief Justice Martha Koome. However, more petitions were filed as the impeachment process progressed culminating in the Senate approval of the impeachment motion from the National Assembly.
More petitions were then filed in the High Court in Kerugoya including where orders were issued stopping then Deputy President nominee Kithure Kindiki from being sworn-in.
There were also orders stopping President William Ruto from appointing Gachagua’s replacement as Deputy President following his impeachment. It is the files containing those orders that were referred to the Chief Justice for empaneling of a bench.
However, given that Chief Justice Martha Koome was out of the country at the time, her deputy Mwilu remitted the files to the Justice Ogola-led bench.
Gachagua lawyers contested that decision, arguing that Mwilu did not have powers to remit the files to the bench. Such an action, they argued, amounted to assigning the judges to hear the petitions.
Justices Ogola, Mrima and Mugambi, however, ruled it was proper for Mwilu to refer the files to the bench terming it an administrative duty. The Court of Appeal has, however, disagreed.
“In this day and age, we do not think that the Chief Justice can be ‘electronically absent’ for an inordinately long period of time, such that she cannot empanel a bench or give appropriate directions. That can be done electronically from any part of the world. In this case, there was no suggestion that the Chief Justice was electronically unreachable, or physically unable to perform her constitutional administrative function,” the judges ruled.
The court observed that Mwilu in assigning the judges to hear the petitions signed off as DCJ/Ag CJ. The judges had earlier noted that the DCJ can act as the Chief Justice only when the CJ resigns, is removed from office or death of the Chief Justice.
The bench observed that none of the three instances as contemplated in the Judicial Service Act had arisen for the Deputy Chief Justice to act as the Chief Justice.
“Secondly, the reason why it was not the Chief Justice who empaneled the bench was not communicated to the parties at the time,” the Court of Appeal said.
The judges directed that the three petitions be taken back to the Chief Justice to empanel a bench to hear them. The court said the Chief Justice is free to refer the petitions to the Ogola-led bench or empanel a different bench or even expand the bench as it is.
The court also allowed the Chief Justice to replace any judge on the bench if she so wishes arguing that to include the three judges or any of them in the reconstituted bench is a decision to be made solely by the Chief Justice.
The Court of Appeal, however, dismissed Gachagua’s appeal in which he wanted the bench to recuse itself from hearing his case. “We have not found any impropriety in the manner in which the bench has conducted or dealt with the matters. We do not perceive the bench to be biased or lacking impartiality,” the judges ruled.
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