Gachagua looking to auction kikuyus...Via @steveogollaw :
CLARIFICATIONS ON DELIBERATE DISTORTION OF CoA JUDGMENT:
1. Gachagua appealed against Nairobi High Court Ruling, which dismissed his Application/contention that DCJ Mwilu violated the Constitution by appointing the 3-Judge Bench to hear and determine Kerugoya Petition No.13/2024.
2. Gachagua did not, in fact, appeal against the 3-Judge Bench's Ruling that set aside Kerugoya High Court's ex parte order that temporarily halted the swearing in of DP Prof. Kindiki.
DETERMINATION:
1. CoA held that empanelment of Benches is an administrative function that can be performed by DCJ. (See paras 144 and 156).
2. However, CoA held that when appointing a Bench, DCJ must give reasons for that decision, explaining the hardship that precludes CJ from performing that function. The Court rendered itself thus:
"We do not doubt the bona fides of the Deputy Chief Justice in constituting the benches, but we have discussed why it is critical to communicate to the public, the reasons why the Chief Justice did not exercise that administrative mandate of empanelment." See para 158.
3. CoA then held that there was no evidence before it that DCJ had issued such communication/ reasons. On that account, alone, CoA then quashed the empanelment of the Bench, and asked the CJ to reappoint the Bench.
4. Importantly, CoA held that there was no bias at the High Court, and that impeachment was on the political process, not on [against] the Court. Gachagua had politicised and criticised the Nairobi Bench accusing it of doing the Executive's bidding.
IMPLICATIONS:
1. Quashing the appointment of the Bench does not reinstate Gachagua back to Office.
2. Specifically, CoA, in dismissing the balance of the orders sought by Gachagua, reproduced [considered] and declined all of them.
3. For emphasis, those orders do not challenge the Ruling that set aside Kerugoya ex parte orders of stay.
4. It is not the business of the court to repair pleadings, or imagine what litigants hoped to achieve by moving the court as it did. This appeal achieved nothing more than the CoA's plea to CJ to develop guidelines on court sittings on weekends, and circumstances under which DCJ may appoint Benches.
5. For the avoidance of doubt, an Application to Nairobi High Court to review its Ruling setting aside Kerugoya High Court's ex parte orders on account of this Judgment would be a total waste of judicial time.
Other than pragmatic thinking which would mitigate against a review, such an Application, in and of itself, would be of dubious legality. CoA did not say there were no reasons for DCJ to appoint the Bench. It said that there was no evidence that reasons were supplied. CoA did not and has not stopped DCJ from filing reasons post facto…..
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Topic: The Court of Appeal on Gachagua/ Kindiki (Read 715 times)