The fate of impeached Deputy President Rigathi Gachagua now lies in the hands of the courts, after both the National Assembly and the Senate voted to send him home.
At least 29 petitions were filed in the High Court seeking to stop Gachagua’s impeachment before his hopes were dashed on Wednesday, October 16, 2024, when a three-judge bench declined to stop the process. Gachagua was impeached by the Senate the following day after he fell ill moments before testifying.
On Friday morning, Interior Cabinet Secretary Kithure Kindiki was nominated as the new deputy president by President William Ruto and his name approved by the National Assembly.
However, on the same day, High Court judge Justice Chacha Mwita issued conservatory orders barring the seat from being filled pending the hearing of the case before a bench appointed by Chief Justice Martha Koome.
“In the meantime, due to the issues raised in the petition and application, and the urgency demonstrated, a conservatory order is hereby issued staying implementation of the resolution by the Senate upholding the impeachment charges against the petitioner, the Deputy President of Kenya, including the appointment of his replacement,” Justice Mwita ordered.
“That due to the significance of the issues raised in the petition and application, I certify this matter as raising substantial questions of law and public interest and, therefore, fit to be heard by a bench of an uneven number of judges appointed by the Hon. Chief Justice. The file be placed before the Hon. Chief Justice immediately for consideration in that regard,” Chacha further ruled.
On Tuesday, October 22, 2024, it emerged that Koome did not appoint the bench, and instead, the bench was empanelled by Deputy Chief Justice Philomena Mwilu.
It has also emerged that Mwilu appointed the bench of three judges; Eric Ogolla, Anthony Mrima and Freda Mugambi, on Friday night.
During the hearing of the case on Tuesday, Gachagua’s lawyers Ndegwa Njiru and Paul Muite questioned why Justice Philomena Mwilu appointed the bench on Friday night, and according to them, without Chief Justice Martha Koome’s consent.
“The orders were given at 4 pm. When did the file come from Kirinyaga to go to the DCJ? When did the DCJ sit in the middle of the night on Friday to give directions? Permit us to articulate these issues for the sake of the nation,” Muite argued.
“When did the Deputy Chief Justice convene a bench in the middle of the night? We are not only addressing the removal of the deputy president but also that of future Presidents.”
On the other hand, lawyers representing the National Assembly and the Senate argued that Mwilu acted legally by appointing the bench since she is Koome’s legal deputy.
The court proceedings were temporarily halted to allow Gachagua’s side to file a petition seeking to establish whether the bench was correctly empanelled.
Koome’s silence
Amid the court battle that has drawn lawyers from all three arms of government, Koome, who serves as the head of the judiciary and president of the Supreme Court, seems to have taken a back seat.
Since Gachagua was impeached until Tuesday, October 22, 2024, Koome has made three posts on her X account on unrelated issues.
Two of the posts were made to announce the deaths of two resident magistrates, Zena Atetwe Rashid Jalenga of the Milimani Commercial Court and Bernard Kipyegon Rugut of the Molo Law Courts.
The third post, made on October 20, 2024, was on the celebration of Mashujaa Day 2024. Unlike other national public holidays where the heads of the three arms of government attend the national celebrations, Koome did not attend this year’s celebration in Kwale County which was led by President William Ruto.
However, in her online message, Koome celebrated Kenya’s heroes whom she said have shaped the social, economic, and political transformation of the country.
“As we honour the extraordinary service of distinguished leaders—both past and present—who have guided our country with humility, sacrifice, courage, and integrity, we are reminded of their profound impact on our collective journey. From the freedom fighters who laid the foundation for our independence to the selfless individuals working tirelessly for social justice, democratic and accountable governance, and progress, their contributions continue to inspire us,” she stated.
“Today(October 20, 2024), we reaffirm our deep gratitude for their sacrifices, which have paved the way for a better future for generations to come. Let us carry forward their legacy by upholding the values of unity, resilience, and service to the nation in everything we do.”
Ruto joins Gachagua fray
On Tuesday, Ruto joined the impeachment fray, filing a preliminary objection against the cases in the High Court.
Through lawyer Adrian Kamotho, Ruto says that the court lacks jurisdiction to hear and determine the petition, arguing that only the Supreme Court has the authority to hear such petitions.
“The Petition herein has been filed in this Honourable Court in clear disregard of the law, is an abuse of the due process of court, hence cannot be countenanced and/or determined by this Honorable Court,” Ruto’s petition read in part.
Ordinarily, it is expected that Koome would preside over the swearing-in of the new deputy president in case the court vacates the stay orders.
