By Sam Alfan.
An activist seeking the removal of Deputy President Kithure Kindiki will challenge a ruling by a three bench declining to recuse themselves from hearing the case.
Joseph Aura has filed a notice, seeking to appeal the decision in which the judges declined to disqualify themselves from hearing the case, which is linked to the impeachment of former deputy president Rigathi Gachagua.
Aura had asked the judges to recuse themselves from hearing the case for alleged bias but Justices Eric Ogolla, Anthony Mrima, and Freda Mugambi dismissed the application saying the activist had failed to prove claims of bias.
Aura through his lawyer Harrison Kinyanjui had argued his case was unfairly isolated citing bias by the three judges.
Aura had also pointed out that Chief Justice Martha Koome reappointed the bench despite a Court of Appeal decision faulting the appointment of the same bench by Deputy Chief Justice Philomena Mwilu.
He reckoned that 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.
Through his lawyer Harrison Kinyanjui, Aura said the nullification of the judges 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 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.
In the appeal, Aura will be seeking orders to block the three judges from hearing the petition.
“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 papers read in part.
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.
