NAIROBI, Kenya, Oct 22 — Justice Eric Ogola has declined a plea for additional time allocation for the filing of applications against a three-judge bench considering petitions against Rigathi Gachagua’s impeachment.
Ogola, presiding over a bench consiting Justices Anthony Mrima and Dr. Freda Mugambi, gave the directive Tuesday afternoon when the court reconvened after to hear applications challenging the seating.
The Presiding Judge was responding to a request by a party that sought time to file its application citing its absence during the morning session when the bench issued directions.
He declined a push by lawyer John Khaminwa, the oldest practicing advocate at 88, to allow drop time restrictions on oral submissions citing the urgency of the matter.
“What’s he hurry for?” Khaminwa asked the bench. Khaninwa could not however specify preffered time allocations for parties when pressed by Justice Ogola.
In a heated exchange with Khaminwa, Prof Githu Muigai, acting for the State Law Office, decried what he termed as apparent efforts to derail the hearing.
The bench had directed Gachagua’s lawyers to file an application within an hour following protracted objections over the constitution of the bench by Deputy Chief Justice Philomena Mwilu.
Justices Ogola, Anthony, and Dr. Mugambi retreated from the courtroom at Nairobi’s Milimani Law Court following a heated session that threatened a stalemate on a scheduled inter-parties hearing.
Senior Counsel Paul Muite had told the bench his team would require sifficient time to file an application suggesting that the court defers the inter-parties hearing.
Parties opposed to the bench argued Mwilu lacked constitutional authority to constitute benches under Article 165 (4) of the Constitution, holding that the function is exclusively granted to the Chief Justice.
President Ruto’s objection
The developments unfolded even as the State Law Office notified the court of its intention to oppose the listing of President William Ruto in the suits in violation of presidential immunity.
Attorney General Dorcas Oduor, who appeared together with former Attorney General Githu Muigai, said the President had seperately instructed lawyers to challenge his inclusion.
President Ruto had filed a preliminary objection at the Kirinyaga High Court challenging the nomination of Interior Cabinet Secretary Kithure Kindiki as Deputy President, terming the case as flawed.
Lawyer Adrian Kamotho contended that the nomination of Kindiki to replace Rigathi Gachagua, following his impeachment on Thursday, October 17, can only be challenged as a presidential election petition at the Supreme Court.
He argued that the court, presided over by Justice Richard Mwongo, lacked jurisdiction to determine the case as framed.
“By virtue of Article 165 (5) (a) of the Constitution, the Honorable Court cannot determine the petition as canvassed and/or grant the prayers sought, being a matter reserved for the exclusive jurisdiction of the Supreme Court,” Kamotho pleaded.
“The petition, as drawn and filed, contravenes Article 140 as read together with Articles 148 and 149 of the Constitution, which provisions absolutely vest the Supreme Court with the mandate to determine disputes emanating from a presidential electoral process,” the lawyer argued.
‘Defective case’
Kamotho also cited Article 143 of the Constitution, arguing that as Head of State, the constitution grants President Ruto immunity from prosecution, and as such, he cannot be subject to a civil suit.
Article 143 (1) provides that: “Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.”
Article 143 (2) further states: “Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”
Kamotho further cited a Supreme Court decision in Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment).
He noted that the court upheld the position that civil proceedings cannot be instituted in any court against the President or a person performing the functions of the President’s office during their tenure in respect of anything done or not done under the Constitution.
Kamotho faulted the petitioners, terming their suit “a clear disregard of the law, [and] an abuse of the due process of court.”
President Ruto’s lawyer asked the court to find the petition “irredeemably defective, null, and void ab initio for breach of mandatory provisions of the law.”
His objection came a day after Gachagua wrote to the High Court Registrar contesting directives issued by a three-judge bench in Nairobi considering his petition, alleging bias.
