The High Court will on Friday rule on whether it will refer a case filed by Deputy President Rigathi Gachagua challenging the process leading to his impeachment to the Chief Justice to constitute an uneven number of Judges to determine the matter.
Through Senior Counsel Paul Muite, Elisha Ongoya, and other counsels, Gachagua told the court that this is the first time the impeachment of a Deputy President is taking place.
He emphasized that procedures relating to the impeachment of governors and those of the President and Deputy President are different, and that is why the court should consider referring the matter to the CJ to appoint a bench that will deal with weighty constitutional issues.
Some 281 MPs on Tuesday voted to impeach the DP. Speaker Moses Wetangula called the vote after only 44 of the required 117 MPs voted to save the DP.
Gachagua now has the Senate to save him, that is, if he manages to raise 23 senators to defeat the motion sponsored by Kibwezi West MP Mwengi Mutuse.
The DP, however, maintains that there was no proper public participation before his impeachment.
"The right to a fair trial is one that cannot be limited. These are weighty issues, particularly in a presidential system of government as opposed to a parliamentary system," Muite said.
He said the fact that the National Assembly had the numbers, doesn't entitle them to proceed and impeach the DP, but there has to be proof of gross violation of the constitution.
"Impeachment in a presidential system of government is not a question of numbers in the national assembly. In a presidential system, it is about the sovereignty of the people who elected the President and the Deputy President," Muite said.
The court heard that public participation is the only avenue where the people can exercise their sovereignty.
In a rejoinder, the Speaker of the National Assembly told the court that the issues being raised by the DP have been overtaken by events as a resolution was already passed with an overwhelming majority of MPs.
He mentioned that the Senate is now seized of the matter and the court should not issue orders in vain.
Advocate Benson Milimo, on record for the Speaker, said he didn't see any weighty issues necessitating the file to be placed before the CJ to appoint a bench.
He said the National Assembly exceeded the standards when it came to public participation. He told Justice Lawrence Mugambi that votes determine the removal of the DP by way of impeachment.
"There's no other procedure provided in any other law," he said.
At least 22 petitions have been filed touching on the impeachment of the DP across the country. Five were before Justice Mugambi today. While others were before Justice Chacha Mwita.
One of them has been filed by one Nicholas Mweu. The National Assembly and the Senate are also parties to these matters before Mwita.
They sought to have the matters consolidated, but Judge Mwita said it would only be fair for the Principal judge of the High Court to handle the issues at hand and call for the files, and make an administrative decision.