Fresh twist in Gachagua case as petitioners seek his reinstatement as DP and judge’s recusal

The legal battle over Rigathi Gachagua’s removal has taken a fresh twist, with a group of petitioners now demanding his reinstatement as Deputy President, arguing that a prior court order blocking his ouster remains valid and legally binding.

Thirty-two petitioners want three judges, Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi, disqualified from hearing the case, citing bias.

Meanwhile, five co-petitioners argue that a High Court order issued in October 2024, which suspended the Senate’s resolution to impeach Gachagua and blocked the appointment of a replacement, remains in force, hence, he should be reinstated.

The five are relying on the October 18, 2024, ruling by the High Court in Kerugoya, which had suspended the implementation of Gachagua’s impeachment and halted the swearing-in of a new Deputy President. The suspension was granted by Justice George Vincent Odunga but was later lifted by a three-judge bench assigned by Deputy Chief Justice Philomena Mwilu.

Legally void

Citing a recent Court of Appeal ruling, the co-petitioners argue that the lifting of the Kerugoya order was invalid, as the appellate court found the bench that issued it was improperly constituted and its decisions were legally void.

“The Court of Appeal quashed the empanellment orders of the Deputy Chief Justice, rendering all resulting proceedings, including the lifting of Justice Mwongo’s orders and the swearing in of Prof Kindiki, void ab initio (from the beginning),” lawyer Stanley Matiba, who is representing the petitioners, said.

According to Matiba, this means the original Kerugoya order remains in force and Gachagua is still legally the Deputy President.

If the court agrees, the country could be plunged into a constitutional dilemma, with two individuals, Gachagua and Prof Kithure Kindiki, laying claim to the Deputy President’s office, a scenario not anticipated in the Constitution.

Quash impeachment

Despite this, Gachagua’s lawyers told the court last week that he is no longer pursuing reinstatement, but instead seeks to have the impeachment quashed and be compensated for the remainder of his term, including salaries and benefits.

However, the five co-petitioners insist that reinstating him is a matter of law and judicial integrity, not personal preference.

"Despite the judgment of the Court of Appeal, Prof Kindiki continues to act as Deputy President and perform the functions of the office of Deputy President in direct contravention of subsisting court orders and despite the legal invalidity of the process through which he assumed office,” Matiba said.

He has applied for urgent court orders compelling Prof Kindiki to “immediately cease acting and holding out as Deputy President” pending the determination of the case.

“The continued occupation of that office by Prof Kindiki undermines the authority of the Judiciary, contravenes the Constitution, and erodes public confidence in the rule of law and fidelity to judicial process,” Matiba added.

Other Topics To Read

• Headlines
• Rigathi Gachagua
• Court of Appeal
• impeachment
• Philomena Mwilu
• Former Deputy President
• High Court in Kerugoya
• Fresh twist in Gachagua case as petitioners seek his reinstatement as DP and judge’s recusal
• Politics

Disqualification of judges

Meanwhile, the other group of 32 petitioners is seeking the disqualification of Justices Ogolla, Mrima, and Mugambi from the case, citing perceived bias.

The request for their recusal came as the court reconvened to reorganise the hearing of the consolidated petitions after Chief Justice Martha Koome regularised the empanelling of the bench.

One of the petitioners, Joseph Enock Aura, also wants the case files forwarded to the Chief Justice for the appointment of a new bench composed of at least five judges, excluding the three already named.

“In allowing the swearing-in of Prof Kindiki as Kenya’s Deputy President unconstitutionally, Justices Ogolla, Mrima and Mugambi stand tainted and irredeemably biased, as the said judges cannot shift their hitherto expressed position on this issue,” Aura, through lawyer Harrison Kinyanjui, said.

He argued that the gravity of the case warrants an expanded bench due to the novel issues it raises. These include the legality of Prof Kindiki’s appointment without parliamentary vetting and allegations that he never resigned from his previous post as Cabinet Secretary for Interior before assuming the office of Deputy President.

The court has not yet made a ruling on any of the fresh applications.