Did Gachagua’s Grounds Of Questioning A Three-Judge Bench Carry Any Weight?
The Mt Kenya Times 
President William Ruto and Deputy President Rigathi Gachagua
By: Joseph Mutua Ndonga
Worth Noting:
- Regarding the issue of how one of the disputed of case file landed before the bench, two questions came to mind. Is there law that requires the CJ or her deputy to forward all the cases touching on the same matter to the bench?
- If it is true that this file did not pass through her office, does this ground carry enough weighty to force the judges to recuse themselves from hearing impeached DP’s case?
- In their ruling, the bench stated the Deputy Chief Justice Philomena Mwilu had not broken any law when she empanelled the bench to hear Gachagua’s petitions. The CJ is entitled to delegate her to handle this matter.
When I heard that the legal team of the impeached Deputy President Rigathi Gachagua has written a letter to the Deputy Registrar of Judiciary expressing doubt that a three-judge bench would not give him a fair hearing, my attention immediately shifted to the grounds they cited.
One, the bench changed the hearing date from 29th to 22rd of this month.
Two, one of the cases before the bench had allegedly not referred to them by Chief Justice (CJ) Martha Koome.
Did these grounds hold any water? As a layman, my understanding of law is that the Judges were at liberty to exercise discretions on certain decisions. Did the change of date falls in this category?
If yes, then the only thing the bench needed to do is to inform the parties involved and their lawyers. In the ruling, the judges observed that the date of 29th had been set before the empanel of the bench.
Regarding the issue of how one of the disputed of case file landed before the bench, two questions came to mind. Is there law that requires the CJ or her deputy to forward all the cases touching on the same matter to the bench?
If it is true that this file did not pass through her office, does this ground carry enough weighty to force the judges to recuse themselves from hearing impeached DP’s case?
In their ruling, the bench stated the Deputy Chief Justice Philomena Mwilu had not broken any law when she empanelled the bench to hear Gachagua’s petitions. The CJ is entitled to delegate her to handle this matter.
In my considered view, the CJ have no power to dictate or micro-manage the judges on how to carry on with their duties. Therefore, the judges reserve the right to even admit or reject applications of individual and parties seeking to be enjoined in the case.
Upon request, the power of CJ is limited to only establishing the bench.
In Gachagua’s case, this request had made by senior counsel Paul Muite, who is leading impeached DP team of lawyers.
Muite argued this matter is weighty and so we plead with the CJ to set up a bench of more than two judges.
Now, one may ask. Does it mean the team does not have faith in CJ, the head of judiciary? Notably, Gachagua is seeking justice from the same institution.
At this juncture, allow me to look this matter from another point of view. Taking cognizant of the fact that all 26 petitions filed by Gachagua’s legal team were being heard by High Court, the question is. Does this court have the jurisdiction to hear matters touching on presidential disputes?
For the first time, President William Ruto has waded into this matter and I agree with his opinion that the disputes involving the presidency ought to be handled by the Supreme Court of Kenya.
As per the constitution, the presidency is comprised of the President and his Deputy. The apex court is exclusively bestowed with the power of handling presidential election petitions. So, if the impeached DP feels that had been unfairly hounded out, he is required to register his reservations with this court.
The judges will give him chance to argue his case and other parties will also present their submissions.
The seven- judge bench will retreat to write their ruling and later each judge would deliver his or her the judgement. Does the Supreme Court have the power to reinstate him? This is the first time the apex court will be handling a case of this nature. As such, there were no precedents.
The constitution is however clear that the impeachment trial of DP ought to be exclusively handled by the National Assembly and Senate. no
Well, I know the case filed by Gachagua’s legal team is hinged on two main grounds.
One, there was no proper public participation. Two, Gachagua was ‘denied a chance’ to defend himself in person before the Senate.
Do these grounds carry any weight? The constitution does not provide the threshold of the number of people who should turn up during the public participation.
I remember this issue rose up during the hearing of a petition filed before the Supreme Court challenging the Finance Bill, 2024.
This prompted one of the judges to ask the parties involved. Can you help us to understand what is sufficient? This is because the constitution does not give the threshold.
Regarding Gachagua’s no-show when he was supposed to face Senior Counsel James Orengo for cross examination, the law states.
If he is not available, the lawyers should represent him.
Joseph Mutua Ndonga Is A Writer And Social Commentator
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