The Court of Appeal has stopped the hearing of all petitions that were filed in the High Court on the impeachment of former Deputy President Rigathi Gachagua pending determination of a case filed in the appellate court.
High Court judges Eric Ogola, Freda Mugambi, and Antony Mrima, who were hearing the consolidated petitions, were on Thursday scheduled to issue new directions and set a hearing date for the substantive petition.
That was after the bench concluded the hearing of interlocutory applications and consolidated the petitions. But the matter did not proceed owing to an order from the Court of Appeal issued on Tuesday, February 25.
Gachagua had last year moved to the Court of Appeal to challenge the legality of the bench of justices Ogola, Mugambi, and Mrima, arguing it was not properly constituted. He had argued that the bench was constituted by the Deputy Chief Justice Philomena Mwilu and not Chief Justice Martha Koome.
His appeal is on the legality of the DCJ’s action, saying the role of constituting the High Court bench is a mandate of the Chief Justice and cannot be delegated. The High Court judges had initially dismissed an oral application by Gachagua’s lawyers to stay the proceedings pending the hearing and determination of the appeal.
In his appeal, Gachagua is challenging the High Court ruling that found it constitutional for the Deputy Chief Justice (DCJ) to constitute a bench of judges to hear a matter when the Chief Justice is away.
Gachagua's lawyers, led by Paul Muite and Elisha Ongoya, 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.
During a mention for directions on how the case should proceed last month, 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, however, 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 inclined to deny extension of time," said Justice Ogola, who is presiding over the proceedings.
Now, the Court of Appeal has issued the stay orders.
“Upon hearing the appellants and the counsel for the respondents, the judgment on the two consolidated petitions matters is reserved for May 9, 2025,” Appeal Judges Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott said on Tuesday, February 25, 2025.
“Meanwhile, the High Court proceedings are stayed to await determination of these consolidated appeals,” they added.
Justice Ogola had last month said they were ready to suspend the hearing should they be ordered to do so.
"We restate our position that at any time we would be served with a stay order, we will down our tools," Ogola said.
