Justices Fredah Mugambi, Eric Ogolla and Anthony Mrima /FILE
A businessman has asked the High Court to hear his petition challenging Prof. Kithure Kindiki’s appointment in open court, arguing it is necessary for a fair trial and public scrutiny.
Joseph Enock Aura, through his lawyer Harrison Kinyanjui, wants the court to cancel an order that the case be heard virtually on September 29 and 30 and instead hold the hearing in open court.
Aura has filed a Certificate of Urgency and Notice of Motion, citing the massive public interest and wide media coverage that surrounded former Deputy President Rigathi Gachagua's impeachment.
He is also seeking orders to vary and set aside directions issued on June 18 and affirmed on September 22, requiring the determination of his petition virtually by written submissions on the two hearing dates.
Instead, Aura wants the three-judge bench comprising Justices Anthony Mrima, Eric Ogola and Fredah Mugambi to hear the amended petition in open court in the same manner the three heard the earlier petitions touching on the same issues.
The petitioner further states that he requested the Deputy Registrar on June 3 to provide multimedia and video-playing facilities during the open-court hearing.
He holds that on May 7, the court had directed, with consent of the parties, that the petition be heard in open court; and that he needs to play online evidence from the National Assembly and Parliament.
Aura states the multimedia facilities are necessary because his evidence includes online material and video recordings that he intends to present as part of his evidence before the court to demonstrate that there was, in fact, no lawful impeachment of Gachagua, nor was the purported swearing in of Kindiki lawful.
He also cites the large number of advocates, network fluctuations, the failure of Justice Mugambi’s electronic gadget on September 22, and a past e-filing failure on October 24, 2024.
He further held that nothing had changed to warrant his petition being exclusively heard online.
"There is now no 'Covid-19' in September 2026 swirling in Kenya. The excuse to, therefore, railroad the petitioner's instant petition to a 'virtual' hearing is wholly unwarranted and unjustified, and the amended petition ought to be conducted in open court."
He argues that virtual proceedings would breach the constitution, citing court proceedings in the consolidated petition concerning the impeachment of Gachagua, arguing that those proceedings were all conducted in open court and were made accessible to the public to watch.
“In light of the foregoing, the petitioner/applicant herein is aggrieved that his petition’s hearing is to be conducted in a close-circuit and controlled narrow digital space that does not meet the threshold of a public court as envisaged under Article 50(2)(d) of the constitution of Kenya hence denying him a fair trial,” he argues.
The petition challenges the appointment of Prof Kithure Kindiki as Deputy President after the impeachment of Rigathi Gachagua. Aura says Kindiki was still Interior Minister when he was nominated, which makes his appointment unconstitutional.
Aura maintains that no gazettement of Kindiki's cessation as a CS was ever made (to date), a move which is in violation of Article 137(2)(b) of the Constitution of Kenya as read with Section 6 of the Public Appointments (Parliamentary Approval) Act.
He contends that isolating his petition to virtual online proceedings portrays the court as hiding the proceedings from the public.
Aura states the three-judge bench is biased against him and that he has lost confidence in its ability to hear the petition objectively.
He asked the court to certify his application as urgent, suspend the September 29 and 30 hearing dates of his petition pending determination of the motion and order that his amended petition be heard in open court.
When rejecting an earlier request on September 22, the three judges ruled: "We find that the petitioner has not discharged the burden of establishing facts from which a fair-minded and informed observer would conclude that there is a real possibility of bias on the part of any member of this bench."
They added that a virtual hearing, “that is properly conducted with adequate safeguards for access, participation and publicity, is not, for that reason, inherently unfair".
The judges also said Article 50(2)(d) is about people accused of crimes and that Article 50(1) does not give anyone "an absolute entitlement to dictate the mode in which that hearing is to be conducted".
The new request awaits a decision.
