Impeached Deputy President Rigathi Gachagua has moved to the Court of Appeal to challenge a decision that was rendered by a three-judge bench last week.
In his appeal, Gachagua is challenging the High Court's ruling which determined that the empanelment of the three-judge bench by Deputy Chief Justice Philomena Mwilu was procedural.
Gachagua, through his lawyers, argues that the Justices Eric Ogola, Anthony Mrima and Fredah Mugambi misinterpreted the Consitution, maintaining that only the Chief Justice can empanel a bench to hear a case.
"The applicant contends that the stated ruling is based on not only a misinterpretation of Article 165 (4) of the Constitution but also a violation of Articles 25, 27, 47, 48, 50 (1) and 260 as the Constitution accords the power to empanel and assign judges to only the Chief Justice of Kenya, therefore the DCJ has no power to assign and empanel Judges," read the appeal in part.
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In their earlier ruling, the three judges noted that there was nothing wrong with Mwilu appointing the bench to hear a case given that she was acting in the absence of the Chief Justice.
"It is, therefore, our finding that the constitutional finding of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform," the bench ruled then.
Meanwhile, a hearing on the conservatory orders related to the impeachment is set to begin on Tuesday, October 10.
Gachagua had obtained conservatory orders seeking to stop the implementation of the impeachment by the Senate and his consequent replacement in government.
On the other hand, the State sought to have orders vacated to allow the searing-in of Kithure Kindiki as the next DP.
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