Gachagua's plea to remove controversial claims from application seeking judges' recusal rejected

The High Court has declined to expunge two contentious paragraphs from court records in a case involving the impeachment of Rigathi Gachagua as Deputy President, where allegations of judicial conflicts of interest were raised.

The decision was made on Thursday by a three-judge bench led by Justice Eric Ogola after lawyer Ndegwa Njiru claimed that Justice Anthony Mrima has close ties to Deputy President-elect Kithure Kindiki and that Lady Justice Freda Mugambi was once Kindiki’s LLM student at Moi University.

Lawyers representing the National Assembly, the Senate, and the State argued that the allegations were frivolous and ascertained that Moi University does not offer an LLM (Masters of Law), contrary to the allegations.

Despite the gravity of the claims, Justice Ogola made it clear that the paragraphs would remain part of the official record.

"Of course, the application has been made and the responses are there. We decline the invitation to expunge the paragraphs; they will remain as part of the record,” Ogola ruled.

Further allegations in the affidavit included claims that Justice Ogola’s wife holds a position at the Water Towers Agency, an appointment made by the Defence Cabinet Secretary then serving as Environment CS Soipan Tuya, on behalf of the Presidency.

The petitioners implied a conflict of interest due to President William Ruto's involvement in the appointment, with Ndegwa Njiru arguing, "One of the issues before the impeachment was that the DP indicated Kenya is a shareholding country. It is my client’s submission that Justice Ogola’s wife may have been a beneficiary of that shareholding."

Rigathi Gachagua's lawyers Bdegwa Njiru (centre) and Kibe Mungai (right) at the Milimani High Courts on Thursday, October 24, 2024. (Photo: Judiciary)

The petitioners also raised concerns about a close relationship between Justice Mrima and Senate Speaker Amason Kingi, which they argued should have been disclosed.

These connections, according to the petitioners, created an improper environment for the judges to continue presiding over the matter.

Kingi was accused of attending a renewal of vows between Justice Mrima and the wife in 2021, gifting him and calling him a long-time friend.

All the claims by Gachagua's lawyers were filed in an application seeking the recusal of the three-judge bench from cases related to Gachagua’s impeachment.

This is the second time the lawyers are seeking to have a new bench listen to the consolidated cases in the Gachagua impeachment saga. On Wednesday, the bench rejected an application by Gachagua challenging the authority of Deputy Chief Justice Philomena Mwilu in constituting the panel.

Justices Ogola, Mrima, and Mugambi dismissed the application with costs, criticising Gachagua’s lawyers for "playing to the gallery."

The bench ruled that the DCJ, in the Chief Justice’s absence, has the constitutional power to assign benches, stating, "It is our finding that the constitutional function of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform."

The bench also dismissed claims that it had convened unusually on a Saturday to invite parties for an inter-party hearing.

"We hold that the accusations made by the applicant against this bench are entirely without merit,” the judges ruled.

Gachagua's challenge to Mwilu's role came as the court convened to consider an application for the review of orders that had temporarily halted the swearing-in of Kithure Kindiki as Deputy President.

Lawyers follow procedings in the Rigathi Gachagua impeachment case at the Milimani High Courts on Thursday, October 24, 2024. (Photo: Judiciary)