Gachagua protests to Judiciary over case handed to three-judge bench without CJ Koome's approval

In a formal letter addressed to the deputy registrar of the High Court, Rigathi Gachagua, the ousted Deputy President, has raised concerns about the judicial process in a case contesting his impeachment.

Gachagua questioned the legitimacy of the proceedings, criticising the formation of a three-judge bench without the direct authorisation of Chief Justice Martha Koome.

He expressed concerns about the speed at which the bench was convened to consider an application seeking to lift an order that had blocked the swearing-in of Interior Cabinet Secretary Kithure Kindiki as Deputy President.

Through his lawyer, John Njomo, Gachagua pointed out that after he filed the case, identified as Nairobi High Court Petition No. E565 of 2024 on October 18, the case was initially assigned to Justice Chacha Mwita.

Sitting on a Saturday

Justice Mwita then issued a conservatory order that halted the implementation of the Senate's resolution to remove Gachagua from office and directed that the case be mentioned before a bench of judges on October 24.

However, when the petitioners requested a date, they were informed that the bench had no available dates until October 29 for the cases it had been allocated.

“When the government approached the same bench with two new cases, they found time to hold a hearing on Saturday, October 19, and scheduled a hearing for the new cases on October 22,” Njomo stated, adding that the bench sat without CJ's approval.

Gachagua further raised concerns about the apparent inconsistency, stating, “The same judges who had previously told us they were unavailable until October 29 managed to expedite these new cases.”

Constitutionality of the impeachment process

“We are instructed to request that an investigation be launched to establish how the file (Nairobi High Court Petition No. E565 of 2024) moved from Justice Chacha to the three judges without express directions from the Chief Justice. There are preliminary indications that the Chief Justice was not even in the country at the material time in question," Njomo said.

“The inalienable requirement of a fair trial dictates that justice must not only be done, but it must also appear to be done.”

He argued that the treatment of Gachagua in this case indicates bias and suggests that the jurisdiction of the Chief Justice is being undermined.

Additionally, Gachagua highlighted media reports indicating that Kapseret Member of Parliament Oscar Sudi stated that Kindiki would be sworn in as Deputy President on October 22.

"This conduct sends shivers to our client regarding the prospect of justice in his case, as it appears the bench is aligning itself with the interests of the National Assembly and the Senate," Njomo objected.

Gachagua's legal team said it is preparing to file a formal complaint with the Judicial Service Commission and sent a copy of their letter to Chief Justice Koome, seeking a written response regarding the issues raised.