Petitioner Seeks Recusal of Judges in Gachagua Impeachment Case
A petitioner, represented by Lawyer Harrison Kinyanjui, has formally asked three High Court judges to recuse themselves from hearing his case, alleging bias and a breach of his constitutional right to a fair hearing.
The request was filed by Joseph Enock Aura in Constitutional Petition, a case that challenges the purported impeachment of Deputy President Rigathi Gachagua and the nomination of Prof. Abraham Kithure Kindiki as his replacement.
In a “Notice of Motion for the Plea of Recusal of the Bench” dated October 1, 2025, drawn by J. Harrison Kinyanjui & Co. Advocates, Aura seeks the immediate disqualification of Justices E. Ogola, A. Mrima, and Lady Justice Frida Mugambi from any further involvement in the proceedings.
The core of his application hinges on the court’s decision to handle his petition separately from other consolidated petitions that he says raise identical and substantially similar constitutional issues. Aura contends that by isolating his case, the court is acting in a discriminatory manner, violating his rights under Article 50(1) of the Constitution, which guarantees a fair hearing before an impartial tribunal.
He argues that this separation creates a “real apprehension” of bias and could lead to an “unhappy state of conflicting decisions” from parallel court proceedings. His supporting affidavit, prepared by his legal team led by Lawyer Harrison Kinyanjui, states that the average, informed person would conclude there is a “real possibility” the court is biased against him.
The petitioner anchors his motion on a letter from Chief Justice Martha Koome dated January 23, 2025. In the letter, the Chief Justice acknowledged Aura’s request for his petition to be heard by a five-judge bench alongside the related cases. She directed that any request to “expand the subsisting Bench or otherwise reconstitute altogether should be made before the trial court,” to allow all parties in the related cases a chance to be heard.
Aura, through Lawyer Harrison Kinyanjui, argues that the current bench is attempting to make a determination on the issue of an expanded bench without the participation of the other consolidated petitioners, which he sees as a direct contravention of the Chief Justice’s guidance and a denial of due process.
Furthermore, the application cites several binding legal precedents to bolster the argument for consolidation. It references the Supreme Court’s ruling in Omoke v Kenyatta & 83 others, which emphasised that courts must consider the cost, time, and judicial resources when deciding on consolidation.
The petitioner asserts that it is “imprudent” to use scarce judicial resources on separate hearings for the same core issues. Another Supreme Court case, Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others, is cited, where the court held that consolidating cases with the same central issue serves the interests of justice by preventing undesirable delays and ensuring expeditious resolution.
Aura fears that if the current bench continues to hear his petition in isolation, he will be strategically sidelined and potentially locked out by the technical doctrine of res judicata, which prevents the same matter from being litigated twice once a judgment has been delivered in the consolidated cases.
He maintains that his application for recusal is made in good faith to ensure transparency, fairness, and the rule of law are not compromised. If the recusal is granted, Aura, through his counsel Harrison Kinyanjui, has asked that the matter be mentioned before the Chief Justice for further directions.
The motion, filed by J. Harrison Kinyanjui & Co. Advocates, is yet to be heard, and its outcome will determine the future course of this high-stakes constitutional dispute.
