BY SAM ALFAN.
An activist seeking the removal of Deputy President Kithure Kindiki is pushing for the recusal of a three-judge bench appointed to hear petitions challenging the impeachment of former Deputy President Rigathi Gachagua.
In an urgent application, Joseph Aura argues that Justices Eric Ogolla, Anthony Mrima, and Freda Mugambi—who were reappointed by Chief Justice Martha Koome to determine the cases—should step aside from hearing all related petitions.
Aura pointed out that Justice Koome reappointed the same bench despite a decision by the Court of Appeal, which quashed the appointment made by Deputy Chief Justice Philomena Mwilu.
The appellate court had ruled that the authority to empanel a bench to hear such cases is the sole mandate of the CJ.
Nonetheless, CJ Koome proceeded to appoint the same bench.
During previous hearings in the High Court, the judges were asked to recuse themselves, but they declined.
Aura, through his lawyer Harrison Kinyanjui, has now filed a fresh urgent application arguing that the judges should recuse themselves from hearing any petition related to Gachagua’s impeachment.
He says the Chief Justice had directed him to make the request before the three judges and involve the other parties.
He told the court that the nullification of their earlier appointment by the Court of Appeal raises concerns about their objectivity.
“Else, the edict that justice must not only be done, but also be seen to be done will clearly stand violated and inevitably, there will register in the public mind that the 3 said Judges have assumed an unjustifiable and opaque reason to cling to this Petition and drive its determination in a manner detrimental to the securing of justice objectively,” the court papers read in part.
Kinyanjui also stated that despite writing to CJ Koome requesting a larger bench of five judges, she returned the matter to the same three judges, who are unlikely to change their stance.
He is seeking, among other orders, that the three judges be barred from hearing the amended petition filed by his client.
“Pursuant to the directions of the Hon. Chief Justice of Kenya by her letter to the petitioner herein dated 23rd January, 2025 in the instant Petition, this Honourable Court be pleased to grant the Applicant’s plea that the bench herein comprising of the Hon. A. Mrima J., Hon. E. Ogola J., and Hon. Lady Justice F. Mugambi, forthwith ceases to hear and determine any aspect of the Amended Petition,” the court paper read in part.
In the court filings, Kinyanjui further argued that if President William Ruto were declared mentally or otherwise unfit to hold office, the country could face a major constitutional crisis.
He added that should the President suffer incapacitation or be declared unfit during the pendency of the proceedings, Article 146(2)(a) of the Constitution would come into immediate effect.
Aura says should the appointment of Prof. Kindiki as Deputy President—be found illegitimate— it would create a serious constitutional dilemma.
Aura wants all related petitions challenging Gachagua’s impeachment to be put on hold pending the hearing of his application.
“The only recourse in the circumstances is for the learned Hon. Mr. Justice A. Mrima, Hon. Justice E. Ogola and Justice Fridah Mugambi to allow prayer 3 of the Motion herein made, and have the Constitutional Bench reconstituted,” court papers add.
Aura argues that his petition raises weighty issues of great national importance warranting the appointment of an expanded bench of no fewer than five judges.
“The matter also raises questions of infringement of rights and fundamental freedoms under the Bill of Rights in the Kenya constitution of, and concerning the 1st Interested party, H.E. Hon. Rigathi Gachagua, as well as whether the purported appointment of the 10th Respondent, Prof. Abraham Kithure Kindiki as Kenya’s Deputy President is inconsistent with, and in contravention of the Constitution,” he states in his application.
Kinyanjui maintains that the prayers sought in the amended petition have far-reaching implications and that public interest in the matter extends beyond his client.
Aura claims in his affidavit that he was never formally notified of the appointment of the judges.
