Gachagua’s legal team seeks to uphold order barring Kindiki swearing-in

Impeached Rigathi Gachagua's legal team is challenging an impeachment resolution against its client in the High Court, arguing that conservatory orders suspending the process are crucial for protecting his rights.

Led by Senior Counsel Paul Muite, lawyer Elisha Ongoya, Tom Macharia, Ndegwa Njiru, and Andrew Muge, the defence contends that the National Assembly's actions, including the hurried nomination of Kithure Kindiki as Gachagua's replacement, lack due process and legal grounding.

During a Tuesday session before Justices Eric Ogola, Anthony Mrima, and Dr Freda Mugambi, Ongoya criticised President William Ruto's swift moves leading to the October 18, 2024 vote, calling it "unprecedented."

He raised concerns about whether the President had obtained the necessary clearances for Kindiki's nomination, highlighting the unusual speed of the impeachment process.

"Considering the unprecedented hurry to impeach Gachagua, I thought the country had become super-efficient," Ongoya said, contrasting this with the typical delays citizens face in accessing services like IDs and health care.

He further scrutinised the events that had unfolded in swift succession in a tone edged with scepticism. Ongoya cast a pointed eye on the president and National Assembly, whom he alleged gathered under unusual urgency to respond to the Senate's call for the Deputy President's removal.

"When things happen in the night, we have reason to have our antennas high," he remarked, criticising President Ruto’s sudden nomination of Kithure Kindiki as Deputy President.

Ongoya also argued that the public had been left in the dark, with no opportunity to weigh in on the Senate impeachment process. “There was no email address for Kenyans to crash," he noted, trolling to the recent flood of public input when the Senate prompted a response to a bill seeking to extend the term limit for the President and MPs.

The lawyer further questioned the legitimacy of the process itself. "Justice delayed is justice denied, but justice hurried is justice miscarried,” he observed, calling out the rapid pace that had overshadowed public participation.

Justices Freda Mugambi, Eric Ogola and Antony Mrima at the Milimani High Courts on Thursday, October 24, 2024. (Photo: Judiciary)

His words carried an undertone of disbelief at the apparent super-efficiency in handling Gachagua's impeachment, contrasting it sharply with the country's more usual delays: long queues for IDs, passports, and hospital services.

Reflecting on the gravity of the High Court hearing, Ongoya urged Kenyans to see the process as more than a democratic challenge. "These proceedings," he said, "offer a unique opportunity for our governance institutions to rise and reflect the will of the people."

Lawyer Tom Macharia added, “Kenya is neither a presidential nor legislative democracy. Kenya is a constitutional democracy,” as he criticised the political autocracy displayed by the National Assembly, Senate, and Executive Arms of the Government.

Gachagua's lawyers further cited Article 23 of the Constitution, which empowers the High Court to address violations of rights.

They argued that a review of the conservatory orders, as requested by the Attorney General, would undermine Gachagua's legal protections.

The legal team also took issue with the public participation process that preceded the impeachment motion, describing it as inadequate and biased.

The State is set to make its case for a review of the conservatory orders in the afternoon session.

Meanwhile, Gachagua's team is pursuing additional legal avenues, having appealed a decision by the Deputy Chief Justice regarding the constitutionality of the bench.

Friday's ruling marked the third setback for Gachagua, as the court dismissed his application for recusal of the judges, which it deemed unmerited.

This came after Gachagua's lawyers sought to challenge the inclusion of claims alleging bias against the judges, further complicating the legal landscape surrounding the impeachment case.