Former Deputy President Rigathi Gachagua has secured a reprieve after the Court of Appeal ruled that his impeachment case was wrongly assigned to a bench of judges by Deputy Chief Justice (DCJ) Philomena Mwilu. In a significant judgment, a three-judge appellate bench Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott ruled that only the Chief Justice has the constitutional authority to empanel judges for such petitions.
The ruling stems from an appeal by Gachagua’s legal team contesting Mwilu’s decision to refer consolidated impeachment petitions to a bench led by Justice Eric Ogola, with Justices Antony Mrima and Freda Mugambi. Initially, Chief Justice Martha Koome had empaneled the original bench. However, after additional petitions emerged some halting Gachagua’s replacement and blocking Kithure Kindiki’s swearing-in as Deputy President DCJ Mwilu reassigned the cases while CJ Koome was reportedly out of the country.
Mwilu argued the action was an administrative necessity. But the appellate judges disagreed, emphasizing that the Chief Justice could still perform her duties electronically, noting no indication she was unreachable or incapacitated. “In this day and age, we do not think the Chief Justice can be ‘electronically absent’ for an inordinately long period of time,” the court observed.
The court also noted that Mwilu signed the reassignment order as “DCJ/Ag CJ,” even though the conditions for acting as Chief Justice—resignation, removal, or death of the CJ—had not occurred. Additionally, the reasons behind CJ Koome’s non-involvement were not communicated to the involved parties.
As a result, the Court of Appeal directed that the petitions be returned to the Chief Justice, who now has the discretion to reassign the matter to the same bench, constitute a new one, or expand it. She may also choose to replace any of the current judges.
However, the court dismissed Gachagua’s plea to have the Ogola-led bench recuse itself, affirming that there was no indication of bias or impropriety.
The case now awaits further direction from Chief Justice Koome.
