The High Court has ruled that Deputy Chief Justice Philomena Mwilu acted lawfully in empanelling a three-judge bench to hear the case on impeachment of Deputy President Rigathi Gachagua.
The three-judge bench dismissed with costs the petition by Gachagua’s lawyers ruling that it lacked merit and that the DCJ can perform duties on behalf of the Chief Justice.
The bench will rule Thursday afternoon on a petition seeking its recusal on alleged grounds of bias.
The Justice Ogola-led three-judge bench came prepared to give a verdict on the legality of its own empanelling.
Gachagua’s legal team led by Senior Counsel Paul Muite had argued that it was only the Chief Justice who could assign judges.
Justice Antony Mrima began by stating that the mandate of the CJ in assigning judges was constitutionally an administrative function that could be performed by the DCJ when the CJ is unable to do so.
The Court also took Judicial Notice that the Petitioners had been expressing dissatisfaction when its directions do not favour them.
The Court posed why the counsels did not raise concern when according to the Case Tracking System, the Conservatory orders to the petitioners and the directions were both issued past working hours.
Muite had also sought to find out why the file from Kerugoya was expressly transported on Saturday to Nairobi for the DCJ to appoint them to hear the matter.
The state represented by senior counsels Prof Githu Muigai and Tom Ojienda concurred with the ruling but Muite indicated that they would appeal against it.
Thursday morning the bench will consolidate petitions, and hear issues challenged in both houses of parliament, with recusal application to be heard in the afternoon.
