{"id":14429,"date":"2025-05-10T14:06:56","date_gmt":"2025-05-10T14:06:56","guid":{"rendered":"https:\/\/ugandaupdatenews.com\/?p=14429"},"modified":"2025-05-10T14:07:15","modified_gmt":"2025-05-10T14:07:15","slug":"court-hands-kenya-deputy-president-gachagua-win-says-only-chief-justice-can-pick-bench","status":"publish","type":"post","link":"https:\/\/prowebinhost.com\/anzu\/court-hands-kenya-deputy-president-gachagua-win-says-only-chief-justice-can-pick-bench\/","title":{"rendered":"Court hands Kenya Deputy President Gachagua win, says only Chief Justice can pick bench"},"content":{"rendered":"\n

By Our Reporters <\/strong><\/p>\n\n\n\n

in Nairobi<\/strong><\/p>\n\n\n\n

In a significant victory for former Deputy President Rigathi Gachagua, the Court of Appeal has overturned Deputy Chief Justice (DCJ) Philomena Mwilu\u2019s decision to appoint a three-judge Bench to hear impeachment-related cases.<\/p>\n\n\n\n

The ruling yesterday clarified that only the Chief Justice has the constitutional authority to empanel judges for such cases.<\/p>\n\n\n\n

The appellate<\/a>\u00a0court held that DCJ Mwilu lacked the power under Article 165(4) of the Constitution to assign Justices Eric Ogola, Anthony Mrima, and Freidah Mugambi to preside over consolidated petitions filed by Gachagua and his allies.<\/p>\n\n\n\n

The court emphasized that the discretion to empanel a bench is exclusively vested in Chief Justice Martha Koome.<\/p>\n\n\n\n

\"\"<\/figure>\n\n\n\n

\u201cThe Chief Justice, and she alone, can decide the number of judges to assign a matter,\u201d  stated Justices Daniel Musinga, Mumbi Ngugi and Francis Tuiyott.<\/p>\n\n\n\n

The dispute arose from Mwilu\u2019s October 18, 2024 appointment of the three-judge bench. Gachagua, represented by lawyer Paul Muite, challenged the appointment, arguing that Mwilu was not the substantive Chief Justice and had not taken an oath as Acting Chief Justice.<\/p>\n\n\n\n

Muite also alleged bias and conflicts of interest involving the appointed judges.
While the Court of Appeal dismissed claims of bias against the judges, it found merit in Gachagua\u2019s challenge to the appointment process.<\/p>\n\n\n\n

\u201cWe quash the orders of the Deputy Chief Justice dated October 18, 2024 assigning the three cases to Justices Ogola, Mrima and Mugambi,\u201d the court ruled. However, it declined to bar Chief Justice Koome from reappointing these judges to a new bench, leaving that decision to her discretion.<\/p>\n\n\n\n

Allegations of bias<\/p>\n\n\n\n

Gachagua\u2019s appeal included allegations of bias against the appointed judges. Justice Mrima was accused of having a close relationship with Senate Speaker Amason Kingi, supported by photographic evidence of Kingi attending Mrima\u2019s wedding in 2021.<\/p>\n\n\n\n

The court dismisse<\/a>d this claim as speculative, noting that the wedding occurred over three years before the petitions were filed and that Kingi was not Senate Speaker at the time.<\/p>\n\n\n\n

\u201cThere must be a clear and reasonable apprehension of bias, which was not met,\u201d the court stated.
Similarly, Justice Ogola faced accusations of a conflict of interest due to the alleged appointment of his spouse, Florence Auma Oluoch, to a state agency by President William Ruto, a political ally of Kindiki.<\/p>\n\n\n\n

The court found no evidence that Oluoch is Ogola\u2019s spouse and clarified that her appointment to the Kenya Water Towers Agency Board was made by Cabinet Secretary Soipan Tuya, not the President.<\/p>\n\n\n\n

\u201cFamily members of judges are entitled to pursue independent careers,\u201d the court ruled, rejecting the claim.
Allegations against Justice Mugambi, accused of being a postgraduate student under Kindiki at Moi University, were also dismissed.<\/p>\n\n\n\n

The court confirmed that Moi University does not offer postgraduate law programs and that Mugambi earned her Master\u2019s degree from the University of Birmingham and a PhD from the University of Pretoria.
Gachagua also challenged the bench\u2019s issuance of electronic directions on a Saturday, alleging a breach of judicial norms.<\/p>\n\n\n\n

The court found no evidence of a formal sitting on that day and noted that the directions complied with Practice Direction No 19(ii), aimed at ensuring expeditious resolution of disputes.<\/p>\n\n\n\n

Conservatory orders<\/strong><\/p>\n\n\n\n

However, the judges urged Chief Justice Koome to establish formal guidelines for handling urgent matters during weekends and holidays, particularly in digital case management.<\/p>\n\n\n\n

The Court of Appeal directed that the three petitions\u2014Kerugoya High Court Petitions No. E013 and E015 of 2024 and Nairobi High Court Petition No E565 of 2024\u2014be referred to Chief Justice Koome for fresh empanelment of a constitutional bench within 14 days.<\/p>\n\n\n\n

The court reiterated that Koome has sole discretion to decide whether to include the three judges in the new bench.<\/p>\n\n\n\n

The ruling followed Gachagua\u2019s challenge to the High Court bench\u2019s legitimacy, which had dismissed his application questioning DCJ Mwilu\u2019s authority to appoint the panel.<\/p>\n\n\n\n

Gachagua argued that only Chief Justice Koome could appoint judges under Article 165(4) for cases of substantial public interest or constitutional significance.<\/p>\n\n\n\n

The High Court bench, comprising Justices Ogola, Mugambi, and Mrima, had previously ruled that the Chief Justice\u2019s mandate to appoint benches is an administrative function that the DCJ could perform on her behalf.<\/p>\n\n\n\n

They emphasized the need for continuity in constitutional duties. However, Gachagua\u2019s legal team, led by Muite, criticized the bench\u2019s swift scheduling changes, including a Saturday session and a Monday hearing for the Attorney General\u2019s application to lift conservatory orders.<\/p>\n\n\n\n

Muite argued that this \u201cbreakneck speed\u201d created a perception of bias, aligning the Judiciary with Parliament and the executive in Gachagua\u2019s removal.<\/p>\n\n\n\n

Gachagua is seeking to overturn the Senate\u2019s impeachment decision, claiming the allegations against him were baseless and that he was denied a fair hearing.<\/p>\n\n\n\n

He also challenges<\/a> the lifting of a conservatory order blocking Kindiki\u2019s appointment, arguing that Kindiki\u2019s ascension was unconstitutional.
Conclusion
The Court of Appeal\u2019s decision marks a procedural win for Gachagua, reinforcing the Chief Justice\u2019s exclusive authority to empanel benches for significant constitutional cases.<\/p>\n\n\n\n

While allegations of bias were dismissed, the ruling underscores the importance of procedural integrity in judicial appointments.<\/p>\n\n\n\n

The case now awaits Chief Justice Koome\u2019s action to reconstitute a bench, with the outcome likely to shape the legal and political landscape surrounding Gachagua\u2019s impeachment.<\/p>\n\n\n\n

What the decision means <\/strong><\/p>\n\n\n\n

Consequently, all the decisions made by the irregularly constituted bench\u2014including those allowing Prof. Kindiki to assume office\u2014have been invalidated. This nullification restores the status quo ante: the stay orders issued by Justices Mwita and Mwongo suspending Gachagua’s impeachment remain in force.<\/p>\n\n\n\n

This ruling reopens a turbulent chapter in Kenya\u2019s political and legal history. With the court recognizing Rigathi Gachagua as the de facto Deputy President, the nation is now poised for a fresh judicial review of the impeachment process and the attempted reshuffle.<\/p>\n\n\n\n

The judiciary\u2019s firm stance on constitutional procedure sends a powerful message: political expediency cannot override the rule of law.<\/p>\n\n\n\n

The files will now be placed before the Chief Justice, who has 14 days to properly constitute a bench to hear the matter, setting the stage for a potentially historic judgment on Kenya\u2019s executive legitimacy.<\/p>\n\n\n\n

Editor:msserwanga@gmail.com<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

By Our Reporters in Nairobi In a significant victory for former Deputy President Rigathi Gachagua, the Court of Appeal has<\/p>\n","protected":false},"author":1,"featured_media":14430,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[65],"tags":[],"class_list":["post-14429","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-national-news"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/prowebinhost.com\/anzu\/wp-content\/uploads\/2025\/05\/KWEyy16WrN85R6JMNfHD7ZVMsrjG35M3xk9DGQa0.jpg","jetpack-related-posts":[{"id":12947,"url":"https:\/\/prowebinhost.com\/anzu\/why-kenyas-deputy-president-rigathi-gachagua-was-impeached-under-the-new-constitution\/","url_meta":{"origin":14429,"position":0},"title":"Why Kenya’s Deputy President Rigathi Gachagua was impeached under the New Constitution","author":"UgandaUpdate","date":"October 9, 2024","format":false,"excerpt":"Kenyan MPs have voted overwhelming in favour of removing the country's deputy president over accusations of corruption. 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