Court puts Gachagua’s case on hold pending Koome’s appointment of bench
The High Court has adjourned the hearing of former Deputy President Rigathi Gachagua’s petition until Chief Justice Martha Koome appoints a bench to hear the matter.
In a notice served by Assistant Deputy Registrar Beja Nduke of the Constitutional and Human Rights Division, the matter was slated to be mentioned on Thursday, May 15, 2025.
“Following the Court of Appeal judgement delivered on May 9, 2025, in Civil Appeal No. E829 of 2024, this matter, which was scheduled for mention on May 15, 2025, stands adjourned pending directions by the Chief Justice in line with the Court of Appeal decision,” read part of the notice.
On Friday, May 9, 2025, the Court of Appeal (CoA) directed CJ Koome to appoint a bench within 14 days to determine Gachagua’s petition challenging his removal from office.
The CoA overturned Deputy Chief Justice Philomena Mwilu’s decision to appoint a three-judge bench to hear cases filed by the former Deputy President.
In a judgment rendered by a three-judge bench comprising Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, the court stated that Mwilu did not have 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.
They also ruled that only Chief Justice Martha Koome has the power to form an empanelled bench according to the Constitution, adding that her deputy could not purport to hold her fort in her absence.
Further, they directed Chief Justice Martha Koome to appoint another bench within 14 days, without giving an order barring the three judges from being included in the list of judges to be reappointed to determine the petitions.
Additionally, they stated that the decision on the number of judges that will be on the new bench—whether three or five—to hear the matters lies with CJ Koome.
This came after the appellant judges declined to compel the CJ to appoint a five-judge bench to hear the cases, as requested by Gachagua and his allies.
The decision followed Mwilu’s appointment, on October 18, 2024, of Judges Eric Ogola, Anthony Mrima, and Fredah Mugambi to hear the consolidated petitions filed by Gachagua and others to stop Kithure Kindiki from replacing him as DP.
However, Gachagua, through his lawyers led by Paul Muite, argued that Mwilu was not the substantive CJ and could not exercise powers granted to CJ Koome by the Constitution.
Gachagua challenged the appointment of Judges Ogola, Mugambi, and Mrima to oversee his cases, arguing that they should not hear and determine petitions challenging his removal from office by the Senate as they were not properly constituted.
This challenge followed the High Court bench’s dismissal of Gachagua’s application against the DCJ’s powers to appoint the panel presiding over his case.
Gachagua contends that the DCJ does not have the power to form the panel, asserting that Chief Justice Koome alone holds the authority to appoint a bench of judges.
The three High Court judges had previously ruled that the Chief Justice’s mandate under Article 165(4) of the Constitution concerning the appointment of benches to determine weighty constitutional issues is an administrative function.
They stated that the DCJ can assign judges when carrying out any constitutional function on behalf of the Chief Justice, ensuring that constitutional responsibilities are performed seamlessly without interruption.
“In our view, and in line with the doctrine of continuity in governance, the drafters of our Constitution were deliberate in ensuring that the administration of duties and application of constitutional provisions remain uninterrupted,” the Ogola-led bench had concluded.
