We are not going anywhere: Three high court judges decline to recuse from Kindiki DP appointment case

Deputy President Kithure Kindiki during swearing-in at KICC, Nairobi, on November 1, 2024.[File, Standard]

A three-judge High Court bench has declined to disqualify itself for a second time from hearing a case challenging the appointment and installation of Kithure Kindiki as Deputy President following the impeachment of Rigathi Gachagua.

Justices Eric Ogola, Antony Mrima and Freda Mugambi ruled that petitioner Joseph Enock Aura had failed to establish circumstances showing a real possibility that they were biased against him if they were to hear and determine the case.

Aura through lawyer Harrison Kinyanjui had sought the recusal of the bench arguing that its handling of his petition and its previous determination of related constitutional questions regarding former deputy president Gachagua impeachment created a reasonable apprehension of bias.

The petition raises several questions surrounding the current constitutional composition of the National Assembly, the impeachment process of Gachagua, the role of the Independent Electoral and Boundaries Commission and the nomination of Kindiki and his assumption to the office of the Deputy President.

The recusal application was triggered partly by a judgment delivered by the same bench on June 8, 2026 in a related petition involving the Gachagua impeachment process.

Aura argued that the earlier judgment dealt with issues that substantially overlapped with those in his amended petition and that the judges could therefore be unable to approach his case with an open mind.

He also complained about the manner in which the bench handled his case, including moving the matter from a scheduled hearing to a mention, directing that proceedings be conducted virtually and requiring joint submissions with parties in related petitions.

Aura further took issue with a remark allegedly made by one of the judges during the June 18 proceedings, which he said was to the effect that the bench had been required to “endure” hearing him.

He argued that the remark, together with the other directions, demonstrated hostility towards him.

The judges, however, said the alleged remark had to be considered in the context of the full exchange and the official court record.

“This Bench affirms, without reservation, that courtesy, patience and restraint are obligations of judicial office,” the judges said, adding that the material before them did not demonstrate that the remark reflected personal animus towards Aura or affected any substantive determination in the case.

Ogolo led bench also rejected the argument of bias, holding that previous exposure to similar constitutional questions in the Gachagua impeachment case does not, by itself, disqualify a judicial officer.

“A judicial officer does not become biased merely by having previously expressed a view on a question of law,” Justice Ogola led bench said.

The judges said the critical question was whether they had prejudged the evidence, arguments and prayers in Aura’s petition or demonstrated an unwillingness to be persuaded within the law.

“The possibility that a court may adhere to a prior legal conclusion does not establish a closed mind in the recusal sense,” they ruled.

The bench also rejected Aura’s complaint over the delivery of the June 8 judgment on Gachagua impeachment  while an application was pending before the Court of Appeal.

The judges said there was no order staying or prohibiting delivery of the judgment when it was delivered, noting that merely filing or having a pending application before a superior court does not automatically stay proceedings before a lower court.

“Proceeding to deliver a reserved judgment in the absence of a binding order staying that delivery was, therefore, a judicial decision properly open to the Court to make,” the judges said.

The bench further dismissed concerns over an alleged discrepancy in the number of pages in the Gachagua impeachment judgment and the circulation of an unsigned copy, saying there was no evidence that the substance of the judgment had been altered.

The three judges said allegations concerning the integrity of a judicial record require precise, cogent, and specific evidence.

"Allegations of alteration or falsification of a judicial record require precise, cogent, and specific evidence directed at the alleged discrepancy itself and not mere inference," the judges stated.

The judges ultimately ruled that Aura had not discharged the burden of proving that a fair-minded and informed observer would conclude there was a real possibility of bias.

The application was dismissed and Aura was ordered to pay costs to the 4th, 5th and 10th respondents.