Lawyer Kibe Mungai wants the three-judge bench considering petitions arising from Rigathi Gachagua’s impeachment as Deputy President to set aside the directive issued on Saturday.
The three-judge bench directed parties to appear for an inter partes hearing on Tuesday.
Justice Freda Mugambi issued the directive on Saturday amid successive court orders from across the country on the matter.
Mungai said they expected a notification in writing that the judges had been appointed and they would sit on a particular day.
“All those notifications including in cases of abductions have been that the first sitting of a bench has been on a working day and I am aware of this as a fact.”
“We must move this court to set aside that order on the basis of its unconstitutionality,” Mungai argued.
He said the first clarification would be on what basis would an application by the Executive be decided on a Saturday.
“That is a substantive issue,” he said stating that the 2010 Constitution provides for the Bill of Rights.
“In the former Constitution, we used to have a Bill of Immunity of the State, where the state could conduct its business on weekends and outside court sitting hours,” he said.
“We are sitting here pursuant to the orders issued on Saturday. We are also sitting here pursuant to an order made by the Chief Justice.”
Mungai added that Article 165 of the Constitution gives powers to the Chief Justice to appoint a bench. He said the power is substantive and not administrative.
“It cannot be shared by the Deputy Chief Justice,” he added. Gachagua has contested the circumstances under which Justices Eric Ogolla, Anthony Mrima, and Fred Mugambi took up the matter.
"There are preliminary indications that the Chief Justice was not even in the country at the material time in question," Gachagua's counsel said in a letter.
Gachagua sought clarification on how Deputy Chief Justice Philomena Mwilu selected the three-judge panel to review a state appeal aimed at overturning the ruling that blocked Kithure Kindiki’s appointment as deputy president.
His lawyer, Senior Counsel Paul Muite, argued that only the Chief Justice has the authority to form such a panel.
The court, however, learnt that the DCJ acted on behalf of the CJ, who was out of the country at the moment.