Blow to Gachagua as High Court rejects second bid to recuse impeachment case judges

Former Deputy President Rigathi Gachagua has, for the second time, lost his bid to have a three-judge bench recuse itself from hearing petitions challenging his impeachment case.

The request, filed by several lawyers, challenged the legality of the current bench and proposed that the matter be referred back to Chief Justice Martha Koome for fresh empanelment.

The judges Eric Ogolla, Anthony Mrima and Fridah Mugambi, however, held that empanelment of benches is an administrative function of the Chief Justice under Article 165 of the Constitution and not a judicial matter to be reviewed by a bench already in place.

They further noted that returning the file to the Chief Justice without justifiable cause would open the door to potential interference, undermine judicial independence, and set a problematic precedent.

"The allegations of bias, conflict of interest or abuse of power have not been substantiated in this case," the court found.

The bench added that the application lacked legal basis, threatened the credibility of judicial processes, and offended the principle of res judicata, which bars re-litigation of matters already determined.

The request for the judges' recusal came as the court reconvened to reorganise the hearing of the consolidated petitions after Chief Justice Martha Koome regularised the empanelling of the bench.

One of the petitioners, Joseph Enock Aura, also wanted the case files forwarded to the Chief Justice for the appointment of a new bench composed of at least five judges, excluding the three already named.

"In allowing the swearing-in of Prof Kithure Kindiki as Kenya's Deputy President unconstitutionally, Justices Ogolla, Mrima and Mugambi stand tainted and irredeemably biased, as the said judges cannot shift their hitherto expressed position on this issue," Aura, through lawyer Harrison Kinyanjui, said.

He argued that the gravity of the case warrants an expanded bench due to the novel issues it raises. These include the legality of Prof Kindiki's appointment without parliamentary vetting and allegations that he never resigned from his previous post as Cabinet Secretary for Interior before assuming the office of Deputy President.

The rulings now clear the way for the consolidated impeachment-related petitions to proceed to the substantive stage.

The High Court also dismissed an application by a petitioner, Fredrick Mula, who had sought to substitute Gachagua as the petitioner in four of the over 30 petitions.

The judges Eric Ogola, Anthony Mrima, and Freda Mugambi ruled that the request by Mula was premature and unwarranted, given that Gachagua had notified the Court he was not withdrawing the petitions.

"The application dated June 16, seeking to revoke the notice of withdrawal, is hereby allowed. The application seeking substitution of the petitioner is declined. Parties to bear their own costs," the bench said.

The court's ruling effectively leaves Gachagua as the petitioner in the suit he originally filed, even after procedural back-and-forth involving a notice to withdraw and a subsequent attempt to reverse it.

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Mula had argued that the matter raises questions of public interest that go beyond the ex-DP as an individual.

Gachagua had previously told the court that he is no longer pursuing reinstatement, but instead seeks to have the impeachment quashed and be compensated for the remainder of his term, including salaries and benefits.

However, the five co-petitioners insist that reinstating him is a matter of law and judicial integrity, not personal preference.