Blow to Gachagua as bench declines to recuse itself from his cases
A three-judge bench appointed to hear and determine former Deputy President Rigathi Gachagua’s impeachment cases has declined to recuse itself from hearing them.
Presiding Judge Eric Ogola, Lady Justice Fred Mugambi, and Antony Mrima dismissed Gachagua’s second attempt to have them step aside from hearing his cases.
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W“The application of May 29, 2025, challenging the composition of the bench is dismissed,” the bench ruled.
In their ruling, the judges stated that the sole function of constituting a bench of three or five solely lies with the Chief Justice.
“In their view the Court of Appeal decision in Gachagua sends out an unmistakably clear message that the Chief Justice’s inherent power to empanel a bench is a final, non-justifiable function, and referring a live file for further determination on the proper composition of the court not only lacks legal foundation but also threatens the integrity of the judicial process,” the bench stated.
The judges noted that the fresh applications seeking the reconstitution of a new bench and their recusal was addressed by the court of appeal to finality.
“That said, we are ultimately in agreement with the respondents (National Assembly and Senate) that the question of empanelment, and in particular the request to exclude the present judges and constitute an extended bench, was directly addressed by the Court of Appeal, and the matter was appropriately determined,” the bench ruled.
Petitions
The decision comes after 41 petitioners moved to court seeking the reappointment of a fresh bench to hear and determine Gachagua’s cases.
In their detailed petitions, the petitioners, led by Gachagua, Eddie Waiguru, and Thomas Kamotho, wanted Justices Ogola, Mrima, and Lady Justice Mugambi, who were recently appointed by Chief Justice Martha Koome to hear over 30 cases challenging the removal of Gachagua, to disqualify themselves.
The petitioners argued that the judges are likely not to deliver a fair judgement, citing that they are effectively being set up for a judicial circus in which the outcome is effectively predetermined.
“Given that Justices Eric Ogola, Anthony Mrima, and Lady Justice Freda Mugambi cannot in good conscience and in fidelity to the judicial code of conduct determine the applications for conservatory order requiring a fresh hearing in a manner contrary to the ruling of 31st October, 2025,” part of the petition read.
“We urge the Chief Justice to be pleased to review and set aside her decision communicated to the parties herein by a letter of the Deputy Registrar dated May 23, 2025, to appoint the Justices Ogola, Mrima, and Mugambi to hear and determine the petitions arising from the impeachment of Gachagua, the 2nd Elected Deputy President of the Republic of Kenya,” lawyer Mutembei Marete says.
The petitioners contend that the bench appointed by the Chief Justice, comprising the same persons, cannot lawfully adjudicate over the fresh hearing of the forecited applications or the petitions, and therefore, the decision to appoint them ought to be reviewed and set aside.
They, however, wanted CJ Koome to appoint a five-judge bench to hear and determine all the matters in the dispute.
The new twist in the matter comes after the Chief Justice reappointed Justices Ogola, Mrima, and Mugambi to hear the cases challenging the removal of Gachagua from office.
This is after the Court of Appeal nullified the bench that had been appointed by the Deputy Chief Justice Philomena Mwilu.
The Court of Appeal overturned Deputy Chief Justice Mwilu’s decision to appoint a three-judge bench to hear cases filed by the former Deputy President.
In the judgement rendered by a three-judge bench comprising Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, the court of appeal ruled that Mwilu lacked the constitutional powers to form a High Court bench to determine Gachagua’s impeachment petitions.
“The discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely granted to the Chief Justice. It is the Chief Justice, and she alone, who can decide the number of judges to assign to a matter,” the judges held in a unanimous decision.
