Former Deputy President Rigathi Gachagua/HANDOUT
The High Court on Thursday dismissed an application by former Deputy President Rigathi Gachagua to suspend the hearing on his impeachment case pending hearing and determination of his appeal.
Gachagua moved to the Court of Appeal in October last year, challenging the High Court ruling that found it constitutional for the deputy chief justice to constitute a bench of judges to hear a matter when the Chief Justice is away.
DCJ Philomena Mwilu constituted the bench of justices Eric Ogola, Freda Mugambi, and Antony Mrima to hear petitions filed in respect of Gachagua's impeachment.
However, Gachagua's lawyers, led by Paul Muite and Elisha Ongoya then argued that the DCJ had no powers to constitute the bench. Judges Ogola, Mugambi and Mrima in their ruling then held that the bench was properly constituted before Gachagua moved to the Court of Appeal. The matter is pending hearing in the appellate court.
On Thursday during a mention for directions on how the case should proceed in the High Court, Gachagua's lawyers asked the court to stay it's proceedings pending the outcome of the appeal.
"We are asking this court to stay these proceedings so as to give the court of appeal reasonable time to hear and determine the appeal," said lawyer Dudley Ochiel.
Lawyer Ndegwa Njiru said the matter before the court of appeal could dissolve the bench and that it was important to wait for it's determination before the case proceeds.
"The appeal will have far-reaching implications, especially if it goes in our favour. That is why we are asking the court to hold it's horses," Njiru said.
That application was vehemently opposed by respondents including the National Assembly, the Senate and the Attorney General. Senior Counsel Tom Ojienda representing the Senate asked the judges to decline the application saying there were no stay orders from the Court of Appeal.
In their ruling, judges Ogola, Mugambi and Mrima said Gachagua's prayer was a camouflaged application for stay, which they had already dismissed in October last year.
"This court having declined this application and there being no stay orders from the Court of Appeal, we are include to deny extension of time," said Justice Ogola who is presiding over the proceedings.
He said they were ready to suspend the hearing should such an order come from the higher court.
"We restate our position that at any time we would be served with a stay order, we will down our tools," Ogola said.
The court however granted the petitioners 14 days to amend their petitions and serve on the respondents.
The respondents were also given another 14 days to file replying affidavits before the case is mentioned again on February 27 for fixing of a hearing date.
