- Gachagua, represented by lawyer John Njomo, argues that the High Court's decision, rendered by Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi, misinterprets Article 165 (4) of the Constitution.
Deputy President Rigathi Gachagua has filed an appeal with the Court of Appeal, seeking to suspend ongoing High Court proceedings related to his impeachment while his appeal is under review. This move follows a recent High Court ruling that upheld Deputy Chief Justice Philomena Mwilu's authority to form a bench of judges in the absence of the Chief Justice.
Gachagua, represented by lawyer John Njomo, argues that the High Court's decision, rendered by Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi, misinterprets Article 165 (4) of the Constitution. His legal team contends that the power to appoint and assign judges resides solely with the Chief Justice, claiming that the Deputy Chief Justice overstepped her authority.
“The applicant contends that the stated ruling is based on not only a misinterpretation of Article 165 (4) of the Constitution but also a violation of Articles 25, 27, 47, 48, 50 (1) and 260 as the Constitution accords the power to empanel and assign judges to only the Chief Justice of Kenya...therefore the DCJ has no power to assign and empanel Judges,” he said.
The ruling from the previous week affirmed that, under the doctrine of continuity in governance, the Deputy Chief Justice has the authority to ensure the smooth execution of constitutional duties when the Chief Justice is unavailable. However, Gachagua’s legal representatives argue that the court misread the Constitution, asserting that the ruling misrepresents both its text and spirit.
Additionally, the High Court declined to extend an interim order that would have prevented Gachagua’s replacement by Interior Cabinet Secretary Kithure Kindiki. Nevertheless, one blocking order remains in effect, issued by Judge Richard Mwongo in the Kerugoya High Court, which prevents Kindiki’s swearing-in until the legal dispute is resolved.
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In his appeal, Gachagua is asking the Court of Appeal to prioritize and urgently stay the High Court proceedings, emphasizing the need to protect his case from being undermined before his appeal is fully heard.
