Former Kakamega senator Cleophas Malala has stated that Rigathi
Gachagua remains the legitimate Deputy President of Kenya following Friday’s
Court of Appeal verdict.
Malala lauded the ruling, which found that Deputy Chief Justice
Philomena Mwilu acted unconstitutionally in appointing a three-judge bench to
preside over Gachagua’s impeachment case.
The appellate court further directed that the matter be referred
to the Chief Justice, who holds the exclusive mandate to empanel a bench to
hear and determine such matters.
Mwilu appointed Justices Eric Ogolla, Anthony Mrima, and Freda
Mugambi to hear the case, an action Gachagua’s legal team challenged as
unconstitutional, arguing that only the Chief Justice has the authority to make
such appointments.
In his statement, Malala emphasised that the conservatory orders
issued by Justice Richard Mwongo — halting the impeachment and barring Interior
Cabinet Secretary Kithure Kindiki from assuming the deputy presidency — remain
valid and binding.
“In effect, Rigathi Gachagua remains the legitimate Deputy
President of the Republic of Kenya,” Malala declared, framing the matter as one
of constitutional fidelity rather than political maneuvering.
A three judge bench of
the appellate court presided over by Justices Daniel Musinga (president), Mumbi
Ngugi and Francis Tuiyott on Friday ruled that assigning judges is a
constitutional duty of only the Chief Justice.
The ruling followed an
appeal filed by Gachagua’s lawyers challenging the decision by Mwilu to remit
files to the bench of Judges Eric Ogola (presiding), Antony Mrima and Freda
Mugambi to hear as consolidated petitions that challenged Gachagua’s
impeachment in October last year.
The bench had initially
been constituted by Chief Justice Martha Koome.
However, more petitions
were filed as the impeachment process progressed, culminating in the Senate
approval of the impeachment motion from the National Assembly.
More petitions were then
filed in the High Court in Kerugoya, including where orders were issued stopping
then Deputy President nominee Kithure Kindiki from being sworn in.
There were also orders
stopping President William Ruto from appointing Gachagua’s replacement as
Deputy President following his impeachment.
It is the files containing
those orders that were referred to the Chief Justice for empanelment of a bench.
However, given that Chief Justice Martha Koome was out of the
country at the time, her deputy, Mwilu remitted the files to the Justice
Ogola-led bench.
Gachagua's lawyers contested that decision, arguing that Mwilu did
not have power to remit the files to the bench.
