Gachagua ouster: Petitioners demand fair hearing, say judges acted without CJ Koome order

Five petitioners have questioned the process that led to a three-judge bench being constituted to hear urgent applications related to the ouster of Rigathi Gachagua as Deputy President on a Saturday without explicit direction from Chief Justice Martha Koome.

The petitioners, Hon. David Mathenge, Peter Gichobi Kamotho, Grace Muthoni Mwangi, Clement Muchiri Muriuki, and Edwin Munene Kariuki, said that they filed a constitutional petition on October 18, 2024, seeking conservatory orders to prevent the swearing-in of Interior Cabinet Secretary Kithure Kindiki as DP, pending the hearing of their case.

“The Honourable judge issued the conservatory orders sought... and referred the matter to your Ladyship to constitute a bench to hear and determine the Petition,” stated the petitioners' legal representatives, Njindo Matiba & Co. Advocates, in a formal communication to the CJ Koome.

Despite the established expectation of a prompt response from the Judiciary, the petitioners lamented that they were met with an unexpected delay.

They pointed out that their situation had not unfolded as anticipated. Instead of receiving timely assistance, they encountered opposition from the National Assembly and the Attorney General, both of whom sought to overturn the conservatory orders previously issued by Hon. Justice Richard Mwongo.

This turn of events, they claim, raises concerns about the integrity of the judicial process and the petitioners' ability to receive a fair hearing.

They protested that the same three-judge bench that had previously stated it was fully booked until October 29 quickly found time to schedule hearings for these new applications just days later.

The legal representatives expressed alarm over the speed with which the government’s applications were processed.

“It is obvious that this matter is already being handled in a manner that will make it impossible for fair-minded and reasonable people to view that the aggrieved parties have been accorded a square deal in the impeachment proceedings,” they cautioned.

The peculiar timing of the bench's availability, particularly when it had previously declared it would not convene until later in the month, further raised eyebrows.

“When the applicants/petitioners asked the bench for a date, the bench said that it didn’t have an open date until October 29,” the petitioners’ counsel noted.

Rigathi Gachagua during his impeachment at the Senate. (Photo: Senate of Kenya)

Yet, in a notable contradiction, the bench found time to address the government's urgent requests, highlighting potential bias in favour of the state, according to the lawyers.

Further compounding these issues, the advocates argued that the judiciary must uphold its commitment to fair proceedings.

“A court that seeks to hear and determine an application by the respondents seeking to deny the petitioners a hearing of their grievances on merit would be guilty of violating Articles 19 to 25 and the Mutunga Rules,” they argued.

In light of these developments, the petitioners are calling for transparency and fairness in the judiciary, stressing the need to protect the rights of all parties involved.

“The minimum expectation of our clients is that such basic guarantees will not be thrown out of the window, as we witnessed during the National Assembly and Senate stages of these impeachment proceedings,” their statement concluded.

The hearing for the government’s applications is set for Tuesday, October 22.

Meanwhile, this morning, impeached Deputy President Rigathi Gachagua's legal team also submitted a letter to the Judiciary, questioning how one of the cases challenging his impeachment was scheduled before a three-judge bench on a Saturday without explicit direction from the Chief Justice.

Specifically, the three-judge bench was originally set up to handle six cases, and the two new cases they plan to address on Tuesday were not among them. When the petitioners requested a hearing date, the bench informed them it had no available slots until 29th October for the cases it was assigned.

However, when the government approached the same bench with these two new cases, the judges quickly found two earlier dates, including a session on Saturday, 19th October, and scheduled a hearing for Tuesday, 22nd October.

Notably, the judges not only accommodated the government's request for earlier dates but also advanced cases originally set for 24th October, despite having previously told the petitioners that they would not be available until 29th October. This raises concerns about the fairness and consistency of the judicial process.

The CJ, the Judiciary and the defendants are yet to respond to both applications.