DP hearing: Gachagua decries ‘biased’ bench

Deputy President Rigathi Gachagua on Thursday raised the alarm over the alleged close relationship between one of the judges handling his impeachment cases and Senate Speaker Amason Kingi.

Through Senior counsel Paul Muite and Tom Macharia, Gachagua said Justice Anthony Mrima’s close ties with Kingi, who spearheaded his impeachment at the Senate, has created an undeniable conflict of interest.

The legal team claimed the bench was biassed, saying Mrima failed to disclose his relationship with the Speaker.

They told the bench consisting of Eric Ogola, Mrima and Fredah Mugambi that Kingi attended a wedding ceremony and took a photograph with the judge.

They made reference to a tweet where Kingi opens his statement with, “hearty congratulations to my long-time friend, Justice Anthony Mrima on the occasion of the renewal of your marriage vows with your beloved wife.”

Macharia explained that attending the wedding was not the issue, but the fact that his close relationship with Kingi was not disclosed prior to and during the pendency of the proceedings before court.

“Weddings are personal events. Lack of disclosure leads to the perception of bias. It has eroded confidence that he won’t be neutral when it comes to determining these proceedings,” Macharia said.

Based on this, the judge is guilty of material non-disclosure, as this information should have been disclosed to enable parties to make up their minds on the issues.

Muite, in closing, said the weighty issues raised by his client regarding the legitimacy of his impeachment process must be heard and adjudicated by a bench that is not biassed.

“We kindly ask you to recuse yourself so that another bench is set up,” he said.

Advocate Kibe Mungai and Ndegwa Njiru submitted further on the issue, saying Justice Ogola, who is the presiding judge, is also conflicted.

They claimed to be in possession of credible information that Ogola’s spouse is a member of the Kenya Water Towers Board, having been appointed by President William Ruto, who nominated Kithure Kindiki as his principle assistant ‘in a haste’.

“Justice Ogola failed to disclose these material facts to the parties at the inception of this trial,” they said.

Other reasons advanced for their recusal was that the bench sat on Saturday last week to consider an application by the state seeking to set aside orders blocking Kindiki’s swearing-in.

Petitioners are “apprehensive that the bench will not act or conduct the proceedings in a fair, just and impartial manner and that it is incapable of dispensing with substantive justice,” they said.

“As such, it’s only fair, just and equitable for this bench to recuse itself and convey the files to the Chief Justice for the reconstitution of an impartial bench,” they added.

In a brief rejoinder, Prof Githu Muigai said it had not been demonstrated that the independence of any of the judges had been compromised.

“If this court would entertain such claims, it will throw into a disarray a critical public interest litigation when the country is in the throngs of a serious constitutional crisis,” Githu said.

He argued that the court can not stop sitting on the “most flimsy allegations” of friendship between parties.

The bench consolidated matters touching on Gachagua’s impeachment and said it will first deal with applications seeking their recusal, before delving into other issues raised in the case.