Gachagua's case: Court rules bench is constitutional

A three-judge bench in impeached Deputy President Rigathi Gachagua's case has ruled that the Deputy Chief Justice is legally mandated to constitute a bench.

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While reading the ruling, Justice Anthony Mrima said that the DCJ can perform duties on behalf of the chief justice.

Justice Mrima said that the constitutional finding of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform.

“It is beyond peradventure that the DCJ can assign judges under Article 165 Sub Article 4 of the constitution whenever he/she is discharging any of the constitutional functions on behalf of the Chief Justice,” Justice Mrima read the ruling.

"In this case, we do not find any fault in the DCJ assigning judges to sit in this bench more so when the CJ has not raised any red flag.”

The bench was to rule whether the DCJ is legally mandated to constitute a bench to listen to a matter.

Deputy Chief Justice had constituted a three-judge bench including Justices Anthony Mrima, Eric Ogola and Fredah Mugambi to hear impeached Gachagua’s matter.

Gachagua through his team of advocates led by Senior Counsel Paul Muite argued that the only person who has the capacity to empanel a bench is the Chief Justice.

The team sought to find out at what point the file came from Kerugoya at 4 pm Saturday for the DCJ to appoint Justices Anthony Mrima, Eric Ogola and Fredah Mugambi to hear the matter.

It's in the Kerugoya court where orders were issued blocking Interior CS Kithure Kindiki from taking office.

Shortly after, Solicitor General Shaddrack Mose filed an application seeking to set aside those orders.

In a brief rejoinder, the state represented by senior counsels Prof Githu Muigai and Tom Ojienda argued that the bench was properly constituted by the DCJ.

They said she was exercising powers donated to her by Chief Justice Martha Koome who was at the time in Geneva, Switzerland.

Ojienda cited the Judicial Service Act, which he said provides that the DCJ can exercise the powers of the CJ in her absence.

But Gachagua asked the court to find that they were not given a fair opportunity to interrogate a document which allegedly demonstrated that the CJ was in Geneva.