BY SAM ALFAN.
The high court will on Wednesday afternoon rule whether Deputy Chief Justice Philomena Mwilu has powers to appoint a bench to determine substantial questions of law and the constitution.
Baragwi ward MCA David Mathenge and others submitted that the DCJ has no such powers and the appointment of Judges Eric Ogola, Anthony Mrima and Freda Mugambi had bo backing in law.
The MCA and Gachagua questioned the circumstances and where the DCJ got powers exclusively reserved for the Chief Justice.
Mathenge further want to quash the decision of the Deputy Chief Justice to assign the hearing and determination of 3 out of 10 of the cases refereed to them by various judges.
The MCA submitted that the deputy Chief justice violated Article 25, 27, 47, 48, 50 (1) and 260 of the Constitution in assigning the bench to hear and determine Three out of 10 of the cases certified as raising weighty constitutional questions.
“The invalid assignment of the 3 cases out of the 10 cases to this bench. comprising of Justice Ogolla, Justice Mrima and Lady Justice Freda Mugambi whose impartiality has been questioned by the petitioners will violate the petitioners’ rights under Article 1,19, 20, 21,23, 25, 27, 47 and 50 of the Constitution,” seeks MCA
Alternative, he wants the court to find that the Deputy Chief Justice must take of oath of office as the acting Chief Justice before she can exercise the powers under Article 165 (4) as provided for article 74 of the constitution read together with Article 259 (3) (b) of the Constitution and Section 5 (4), and 5 (5) of the Judicial Service Act.
However, National Assembly has opposed the application arguing that the allegation of concerns of partiality without tangible grounds labelled against this Court is made to gain some under advantage over the Respondents herein by the MCA and a delay tactic or interruption of the proceedings of this Court.
” The Applicant is therefore unwittingly engaging in an unjustifiable act of forum shopping in the most crude form,” adds parliament.
Parliament argued that the application was speculative to the extent that it is based on what is “unclear as to the circumstances that led to the placement of the file to this Bench” yet the Court record will clearly demonstrate the procedures followed in placing the file before this Bench.
Parliament further argued that the application as presented on an unsubstantiated allegation of partiality is tantamount to wanting to forum stop.
“This Court has a duty to sit, in view of the principle of necessity as was established by the Supreme Court in Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others eKLR which supersedes any unfounded allegation on impartiality that would warrant the recusal of a Judge,” says parliament.
National Assembly further argue that the application dated 21 October 2024 as drawn is therefore frivolous, vexatious, bad in law and amount to an underhand means of frustrating the hearing of the 1ª Respondent’s Application seeking to stay the implementation of the stay Orders granted in this matter, as directed by this Bench.
