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Impeached Deputy President Rigathi Gachagua has asked a three-judge bench handling an application that seeks to set aside orders blocking Prof Kithure Kindiki from taking over his office to disqualify themselves.
Gachagua and other petitioners have taken issue with the manner in which Deputy Chief Justice Philomena Mwilu allegedly sat on Saturday night and appointed the bench to hear the matter.
She allegedly directed Justices Eric Ogolla, Antony Mrima and Freda Mugambi to sit on Tuesday and hear the application filed by Solicitor General, Shaddrack Mose, which seeks to set aside orders blocking Kindiki's swearing-in.
This was the same bench that had been appointed by Chief Justice Martha Koome to hear and determine matters challenging Gachagua's ouster.
They had scheduled all matters to be heard on October 29 only for them to push it to Tuesday.
Gachagua through Senior Counsel Paul Muite said the taking of the court file from Kirinyaga in the middle of the night was a gross irregularity.
"It is unclear as to circumstances that led to the placement of the file to this bench on a Saturday without the express directions of the Chief Justice on the composition of a bench," Muite said.
Muite said the only urgency that has necessitated the application by the state is the desire by the Kenyan government to secure the swearing-in of Kindiki without hearing the petitions filed against the impeachment proceedings.
Advocate Kibe Mungai representing one of the other petitioners, weighed in on the issue saying there was a conspiracy to commit an injustice from the word go.
"There must be certain circumstances to justify why a bench should sit on Saturday or Sunday. We don't know the special circumstances that made the DCJ to do what she did," Kibe said.
Based on that, Kibe faulted formation of the three-judge bench for failing to observe the proper procedure in handling the file.
"It appears there is usurpation of the powers and jurisdiction of the Chief Justice who is mandated to constitute benches," he said.