Win for Gachagua as court quashes Mwilu-led bench in impeachment cases
The Court of Appeal (CoA) has overturned Deputy Chief Justice Philomena Mwilu’s decision of appointing a three-judge bench to hear cases by former Deputy President Rigathi Gachagua challenging his removal.
In a judgement rendered by a three-judge bench comprising justices Daniel Musinga, Mumbi Ngugi and Francis Tuiyott on Friday, May 9, 2025 stated that Mwilu did not have constitutional powers to form the bench of the High Court 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 a matter,” the judges held in a unanimous decision.
They 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 three judges from being excluded from being part of the judges to be reappointed to determine the petitions.
Additionally, they stated that the decision on the number of judges that will be in the new bench, whether three or five, to hear the matters lies with CJ Koome.
This is 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 comes after Mwilu, on October 18, 2024, appointed Judges Eric Ongola, Justice Anthony Mrima and Fredah Mugambi to hear the consolidated petitions filed by Gachagua and others to stop Kithure Kindiki from replacing him as the DP.
However, Gachagua, through his lawyers led by Paul Muite, argued that Mwilu was the substantive CJ and could not exercise powers donated to CJ Koome by the constitution.
Gachagua challenged the appointment of Judge 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 Ogallo-led bench concluded.
