Former Deputy President Rigathi Gachagua on Wednesday withdrew an appeal he had lodged at the Court of Appeal seeking to stay High Court proceedings in his impeachment case.
Gachagua had particularly sought orders to stop the High Court from lifting conservatory orders that had stopped his replacement and swearing in of Kindiki as a new DP.
The High Court last week vacated the conservatory allowing Kindiki to assume office as Deputy President.
When the case came up for mention on Wednesday, Gachagua’s lawyer Paul Muite told Court of Appeal judges Patrick Kiage, Aggrey Muchelule and George Odunga that his client wished to have the application withdrawn.
Gachagua sought orders to declare the bench of Justices Eric Ogola, Anthony Mrima and Freda Mugambi unconstitutional arguing that it was empanelled by Deputy Chief Justice Philomena Mwilu and not Chief Justice Martha Koome as ought to be.
“The impugned bench proceeded to vacate the conservatory orders in a ruling which allowed one Prof Kithure Kindiki to be sworn in as Deputy President. Our stay application is thus overtaken by events, very regrettably,” Muite said.
Muite however said the core issue of whether the Deputy CJ can empanel a bench of the High Court remains very much alive before the court.
“It is a matter of great public importance and urgency and deserves an expedited resolution. The substantive appeal is on the single issue of whether powers granted to the CJ is judicial or administrative,” he said.
The withdrawal of the application was not opposed and so the judges marked it as withdrawn.
“We encourage the withdrawal of the application,” senior counsel Githu Muigai said.
He however said once the file is marked withdrawn, the court cannot record any orders on the matter.
Justice Kiage directed parties to file and serve their submissions before the matter is scheduled for hearing before the courts break for the December holidays.
