A three-judge bench will on Wednesday at 3.30pm rule on whether they will bow out of a case challenging orders blocking the appointment of Kithure Kindiki as the Deputy President.
Justices Eric Ogola, Anthony Mrima and Freda Mugambi set the date after parties submitted extensively on the manner in which they were appointed to hear the case.
Impeached Deputy President Rigathi Gachagua through his team of advocates led by Senior Counsel Paul Muite argued that the only person who has the capacity to empanel a bench is the Chief Justice.
They sought to find out at what point the file came from Kerugoya at 4pm Saturday for the DCJ to appoint Justices Anthony Mrima, Eric Ogola and Fredah Mugambi to hear the matter.
It’s in the Kerugoya court where orders were issued blocking Kindiki from taking office.
Shortly after, Solicitor General Shaddrack Mose filed an application seeking to set aside those orders.
Justice Mugambi who sits in Kerugoya on Saturday directed the application to come for hearing on Tuesday.
In a brief rejoinder, the state represented by senior counsels Prof Githu Muigai and Tom Ojienda argued that the bench was properly constituted by the DCJ.
They said she was exercising powers donated to her by Chief Justice Martha Koome who was at the time in Geneva, Switzerland.
Ojienda cited the Judicial Service Act, which he said provides that the DCJ can exercise powers of the CJ in her absence.
But Gachagua asked the court to find that they were not given a fair opportunity to interrogate a document which allegedly demonstrated that the CJ was in Geneva.
Gachagua was impeached on Thursday after the Senate upheld his ouster by the National Assembly on October 8.
Senators voted to uphold five of the 11 charges levelled against him by mover of the impeachment motion, Kibwezi West MP, Mwengi Mutuse.
Ghachagua was prior to the vote expected to take the stand and defend himself but he was suddenly taken ill and hospitalised at the Karen Hospital until Saturday morning.
The embattled ex-DP claims he was not given a fair hearing before the House after an application by his counsel to postpone the hearings was shot down by the Senators.
