Senior Counsel Paul Muite has announced plans to appeal a recent court ruling that upheld the legal authority of Deputy Chief Justice (DCJ) Philomena Mwilu to appoint a three-judge bench to preside over the impeachment proceedings of former Deputy President Rigathi Gachagua.
The decision, made by a three-judge High Court bench on Wednesday, October 23, 2024, rejected Gachagua’s legal team’s request to disqualify the bench from hearing and determining the case.
The ruling, delivered by Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi, affirmed that the DCJ acted within her constitutional mandate in constituting the bench.
The court referenced Article 165 (4) of the Constitution, which empowers the Deputy Chief Justice to act on behalf of the Chief Justice in specific circumstances, including the appointment of judges to hear cases.
Justice Mrima, while delivering the ruling, emphasized that the Constitution clearly grants the Deputy Chief Justice the authority to assign judges when discharging the Chief Justice’s duties.
“It is beyond question that the honourable DCJ can assign judges under Article 165 (4) whenever he or she is discharging constitutional functions on behalf of the Chief Justice,” he stated.
The court further noted that there was no evidence of any procedural wrongdoing or objections raised by the Chief Justice concerning the bench’s formation.
“In this case, we do not find any fault in the honourable DCJ assigning judges to sit on this bench, more so when the honourable Chief Justice has not raised any red flag,” Justice Mrima added.
In response to the ruling, Gachagua’s lead counsel, Paul Muite, expressed his intention to challenge the decision in the Court of Appeal.
Muite acknowledged the court’s allowance to seek an appeal and stated that he would advise Gachagua to move forward with the legal process.
“My lords, your ladyship, we appreciate that this honourable court, from its own volition, has granted the leave to appeal,” Muite said.
“Speaking for myself, obviously, the decision is that of the client. So I will be advising the client but it is for the client to make the final decision. But in fairness to me as counsel and other counsels of this bench, I will certainly be seeking to persuade my client to appeal,” Muite added.
Muite also raised concerns about remarks made by the court, which suggested that the defence counsel had been talking to the gallery during the proceedings, a comment Muite found damaging and inappropriate.
“One issue of accusing counsel to have been talking to the gallery, that is not something that should be left on the record of this court. It is damaging to counsel and that is an issue that definitely needs to be taken out of the record of this court by the Court of Appeal, it was a very unfair decision,” Muite protested.
Earlier in the proceedings, Gachagua’s legal team had questioned the legality of DCJ Mwilu’s decision to empanel the three-judge bench, arguing that such powers are vested solely in the Chief Justice.
The defence sought clarification on how the DCJ came to appoint the bench to hear an application by the state, which sought to overturn a previous court order that had blocked the appointment of Kithure Kindiki as the new Deputy President.
With the appeal now looming, the case will likely continue to draw national attention as the court’s decision on the bench constitution could have significant implications for the trajectory of Gachagua’s impeachment trial.
