Petitioner seeks recusal of judges in Gachagua's impeachment case over alleged bias
The dispute stems from the court's decision to handle his petition separately from other consolidated petitions, which Aura insists raise "identical and substantially similar" constitutional issues.
A fresh twist has emerged in the constitutional case challenging the purported impeachment of former Deputy President Rigathi Gachagua, after a petitioner asked three High Court judges to step aside from hearing the matter on grounds of bias.
Joseph Enock Aura, through his lawyer Harrison Kinyanjui, has filed a formal application seeking the disqualification of Justices Eric Ogola, Antony Mrima and Lady Justice Frida Mugambi from presiding over his petition.
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In his "Notice of Motion for the Plea of Recusal of the Bench" dated October 1, Aura accuses the bench of acting in a manner that undermines his right to a fair hearing as guaranteed under Article 50(1) of the Constitution.
The dispute stems from the court's decision to handle his petition separately from other consolidated petitions, which Aura insists raise "identical and substantially similar" constitutional issues.
He argues that the separation is discriminatory and creates a perception of bias, with the risk of conflicting outcomes from parallel proceedings.
Aura's petition also challenges the nomination of Prof. Abraham Kithure Kindiki as Gachagua's replacement.
In his supporting affidavit, Aura contends that an informed observer would reasonably conclude that the bench is biased against him.
He cites a January 23, 2025, letter by Chief Justice Martha Koome, which advised that any application to expand or reconstitute a bench should be made before the trial court, to give all affected parties a fair opportunity to be heard.
Through his lawyer, Aura faults the current bench for allegedly attempting to make such a determination without the participation of other petitioners in the consolidated matters, terming it a violation of due process.
The application further relies on legal precedents, including the Supreme Court's decision in Omoke v Kenyatta & 83 others, which emphasised efficiency in judicial resources when dealing with similar petitions, and the Law Society of Kenya v Centre for Human Rights & Democracy case, which underscored the importance of consolidation in ensuring expeditious justice.
Aura fears that proceeding with his case in isolation could lock him out of justice under the doctrine of res judicata, which bars re-litigation of issues already determined in earlier judgments.
He maintains that his bid for recusal is made in good faith and seeks transparency in the handling of the case. Should the judges step aside, he wants the matter mentioned before the Chief Justice for fresh directions.
The application, filed by J. Harrison Kinyanjui & Co. Advocates, is pending determination and is expected to shape the next phase of the high-stakes legal battle.
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