The Court of Appeal on Friday, May 9, declared that Deputy Chief Justice Philemona Mwilu’s decision to empanel a three-judge bench to listen to the impeachment case involving former Deputy President Rigathi Gachagua was unconstitutional.
Consequently, the Appellate Court ruled that the three-judge bench composed of Anthony Mrima, Frida Mugambi, and Eric Ogolla ceased to exist, directing Chief Justice Martha Koome to empanel a new judge bench within the next 14 days.
The court, composed of Court of Appeal President Daniel Musinga, and Judges Mumbi Ngugi and Fred Ochieng, ruled that powers to empanel a judge bench were only reserved for the Chief Justice.
Further, the court found that the reasons behind DCJ Mwilu’s empanelment of the three-judge bench were not communicated to all the parties involved, a potential breach of the Constitution.
“And while we do not doubt the bona fides of the Deputy Chief Justice in constituting the benches, we have discussed why it is critical for the reason or reasons why the Chief Justice did not exercise the constitutional mandate reserved for the Chief Justice to be communicated to the parties and the public, and that reason or those reasons be set out in the empanelment order,” the court’s ruling read.
Also, they rejected the respondents’ argument that no such determination could be made without enjoining the Chief Justice or Deputy Chief Justice in the case.
They further ruled that the absence of an objection from the Chief Justice could not be taken as an implicit endorsement of the DCJ’s actions.
In addition, the Court found no evidence that DCJ Mwilu was serving as Acting Chief Justice at the time, nor were there any disclosed exceptional circumstances justifying her exercise of a role constitutionally reserved for the Chief Justice.
The latest marks a significant development in Gachagua’s case, as a new bench might provide a different perspective and outlook on the case. This gives him a glimmer of hope, as the newly-formulated bench might provide a ruling favourable to the former DP.
Even so, this is not a guarantee, as there is the possibility of a newly-empaneled bench issuing a ruling that might not align with Gachagua’s wishes.
Justice Mwilu had, on October 18, 2024, appointed Justices Ogolla (presiding), Mrima, and Mugambi to preside over the petitions brought by Gachagua and his allies against Parliament and Professor Kindiki.
The petitions challenged his impeachment as DP and sought to bar his successor, Professor Kithure Kindiki, from assuming office.
However, Gachagua contested the appointments, arguing that Justice Mwilu, not being the substantive Chief Justice, lacked the constitutional authority to empanel a bench at the time.
The former DP initially challenged DCJ Mwilu’s decision at the High Court, which upheld the DCJ’s actions and declined to have the appointed judges recuse themselves.
It now remains to be seen how Gachagua’s case will proceed, six months after the former DP was ousted from office after a motion filed in the National Assembly for his impeachment succeeded and was later upheld by the Senate.
