By Sam Alfan.
A human rights activist wants the recusal of a bench of three judges handling the cases on the impeachment of former Deputy President Rigathi Gachagua.
In a new application, activist Joseph Aura wants Justices Eric Ogola, Anthony Mrima, and Fridah Mugambi to quit handling the cases over alleged bias.
Aura claims the bench unfairly failed to consolidate his petition—challenging both Gachagua’s impeachment and Prof Kithure Kindiki’s appointment in his place.
Aura argues that his case has been improperly isolated, prompting the application for the judges’ recusal.
Through his lawyer Harrison Kinyanjui, Aura told the court that he felt discriminated against, in violation of Article 27(4) of the Constitution of Kenya.
He emphasized that his petition raises issues substantially similar to those in the consolidated cases but has been excluded without justification.
“The petitioner stands to suffer prejudice, as the consolidated petitions—raising similar issues—are proceeding while his is sidelined. This exclusion undermines fairness and justice,” lawyer Kinyanjui submitted.
Kinyanjui argued that the court’s approach could lead to Aura’s case being dismissed on technical grounds, once the same issues are addressed in the consolidated petitions.
“This creates the impression that the court intends to sideline the petitioner and subject him to a technical knockout,” he added.
According to Aura, his request for recusal was not made in bad faith but is intended to preserve the integrity of the judicial process, particularly given the directions previously issued by the Chief Justice calling for an expanded bench.
Aura said he was invoking Articles 25(c), 48, and 50(1) of the Constitution, which guarantee the right to a fair trial, access to justice, and a hearing before an impartial tribunal.
He maintains that proceeding with his petition separately undermines these protections and creates a perception of bias.
The court heard that allowing two parallel proceedings—one involving Aura and another comprising the consolidated petitions—risks inconsistent rulings on the same constitutional issues, including the legality of Gachagua’s impeachment and Kindiki’s appointment during a period when there was no functional electoral body.
“It will be wholly inconvenient and may result in conflicting decisions,” Aura argued.
The activist further contends that Section 24 of the Leadership and Integrity Act prohibits the discriminatory treatment he has experienced. He insists that the recusal of the current bench is necessary to uphold transparency, fairness, and good governance.
“Ignoring binding precedent and isolating my petition is an act of bias that entitles me to seek the court’s recusal,” he stated.
Aura concluded that his petition cannot be fairly heard by the current bench, which he believes falls short of the constitutional threshold of impartiality.
He reiterated that the Chief Justice had directed the formation of a five-judge bench to handle petitions raising similar issues—an instruction the current bench failed to follow.
