Impeached Deputy President Rigathi Gachagua has appealed the decision that found Deputy Chief Justice Philomena Mwilu acted lawfully when constituting the three-judge bench to hear his ouster case.
Gachagua wants the Appellate Court to suspend the proceedings before the High Court which resume on Tuesday, 29 October this week.
The three-judge bench comprising Justices Eric Ogola, Anthony Mrima and Fredah Mugambi is set to hear an application by the Attorney General and National Assembly seeking to set aside orders blocking Kithure Kindiki from assuming the office of the DP.
But Gachagua, through his Advocate John Njomo, argues the three-judge bench ruling that Mwilu can assign a bench is erroneous.
“The ruling was based on a wrong analysis of the letter and spirit of the Constitution,” avers Gachagua.
He argues that the Constitution only grants the Chief Justice power to empanel and assign Judges and not the Deputy Chief Justice.
On Wednesday last week, a three-judge bench in impeached Deputy President Rigathi Gachagua’s case ruled that the Deputy Chief Justice is legally mandated to constitute a bench.
While reading the ruling, Justice Anthony Mrima said that the DCJ can perform duties on behalf of her boss.
Justice Mrima said the constitutional finding of the CJ to assign benches, being an administrative function, can be performed by the deputy when the CJ, for good reason, is unable to perform.
“It is beyond peradventure that the DCJ can assign judges under Article 165 Sub Article 4 of the constitution whenever he/she is discharging any of the constitutional functions on behalf of the Chief Justice,” the court found.
“In this case, we do not find any fault in the DCJ assigning judges to sit in this bench more so when the CJ has not raised any red flag.”
