Former Deputy President Rigathi Gachagua and those backing him in the impeachment cases were on Thursday split on whether High Court Judges Eric Ogolla, Anthony Mrima and Freda Mugambi should continue sitting or not.

Gachagua’s lawyers- senior lawyer Paul Muite, Elisha Ongoya and Dudley Ochiel stuck to their guns that his case should be heard expeditiously with an allowance for him to further amend it.  

Muite said that Gachagua would not be filing any applications in between.  

However, the other petitioners, represented by lawyers Kibe Mungai and Harrison Kinyanjui, had a different school of thought.

They asked the judges to allow them to argue their applications on whether the trio should continue sitting or not.

Lawyer Kinyanjui went first. He said that the Chief Justice should appoint a fresh bench of more than five but exclude the trio.

His contention was that there are massive procedural flaws that cannot stand.

For example, he said, his client had an issue with whether there were commissioners in the Independent Electoral and Boundaries Commission chair to declare the position vacant for Kithure Kindiki to assume office.

At the same time, he argued that he needed to raise questions on whether one could dissect the three judges from their previous rulings as they were now a new bench.

“Honourable Bench of the Hon. Mr Justice Mrima, Hon. Mr. Justice E. Ogola and Hon. Lady Justice F. Mugambi stands tainted, and irredeemably biased as the said learned Judges cannot shift their hitherto expressed position on this issue.

Of necessity they ought therefore to self-exclude from being part of the 5 Judge Bench to hear and determine the Amended Petition  herein lodged, since they ought to have preserved the Conservatory Orders in place before allowing Hon. Prof Abraham Kithure Kindiki to be sworn in as Kenya’s Deputy President,” argued Kinyanjui.

Lawyer Kibe Mungai said that he too had an application that was being filed on whether the three can continue sitting.

Another lawyer, Njeri Maina, said she needed to raise a question whether the issues raised before when the same bench had initially sat would have to be reheard afresh and if the orders were still in place.  

Mungai told the court that he was in the process of applying to have the Chief Justice review her decision on the bench.

He said his application had a bearing on the cases filed in the court.

Ongoya on his end said Rigathi would not be participating in the applications.

“Our client is against any step that will not allow the other cases to impair the expedited hearing of his case. Our client remains the subject matter that happened in the National Assembly, Senate and subsequently this court,” said Ongoya.

In response, Senator Eric Gumbo’s lawyer said the applications were meant to delay.

Further, senior lawyer Paul Nyamodi asserted that they should be given a limited window period to amend the case.

“When you retire, the interlocutory applications will be determined together with the petition. The contest before you is political, and it is about interests. The different positions will only serve to embarrass this court,” said Nyamodi, adding that all cases should be consolidated and heard together.  

Lawyer Muthomi Thiankolu argued that if the orders prayed for were allowed would keep the process ‘swinging like a pendulum.’

“We cannot be moving one step forward, two steps backward. We need timelines. My client is apprehensive that we will never move,” he argued.

The judges allowed Gachagua to file his new petition and the other parties to file their responses. On the other hand, they directed that Aura’s case should be heard separately as it raised unique issues. It will be mentioned on July 18, 2025.