A three-judge High Court bench has for the second time declined to recuse itself from 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 dismissed an application by petitioner Joseph Enock Aura seeking their removal from the case, ruling that he had failed to demonstrate circumstances showing a real possibility that the judges were biased against him.
Aura’s petition, filed after Gachagua’s removal from office, challenges the circumstances surrounding Kindiki’s nomination, approval and assumption of office as Deputy President. The case also raises constitutional questions relating to Gachagua’s impeachment and the transition that followed.
The petitioner had argued that the judges should not continue hearing the matter after previously determining related questions in consolidated petitions arising from Gachagua’s impeachment. He also pointed to the handling of his case in June, including the change of a scheduled hearing date, the delivery of a judgment in the related Gachagua case and directions issued on how his petition would proceed.
However, the judges found that those circumstances did not establish bias. “Mere suspicion, conjecture, or a party’s subjective dissatisfaction will not suffice,” the bench held.
The judges further rejected the argument that their previous involvement in related proceedings automatically disqualified them. “A judicial officer does not become biased merely by having previously expressed a view on a question of law,” they ruled. The bench said the critical question was whether there was evidence that the judges had prejudged Aura’s case or were incapable of approaching the issues with an open mind.
On the complaint that the judges proceeded with the June 8 judgment despite a pending Court of Appeal application, the bench said no stay order had been issued to stop delivery of the judgment. “The mere filing or pendency of an application before a superior court… does not, by itself and without more, operate as a stay of the proceedings below,” the judges said.
The judges consequently dismissed Aura’s application and ordered him to pay costs to the 4th, 5th and 10th respondents. The ruling was delivered on September 22, 2026.
