APPEALS COURT SIDES WITH LAW, NOT BIAS, IN GACHAGUA BENCH DISPUTE

Nairobi, Kenya — The Court of Appeal has overturned Deputy Chief Justice Philomena Mwilu’s decision to appoint a three-judge bench in the impeachment petition filed by former Deputy President Rigathi Gachagua, declaring that only Chief Justice Martha Koome has the constitutional authority to do so.

The court, in a unanimous decision delivered by Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, ruled that the power to empanel a bench under Article 165(4) of the Constitution lies exclusively with the Chief Justice.

“The discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely vested in the Chief Justice. It is the Chief Justice, and she alone, who can determine the number of judges to assign to a matter,” the judges said.

Justice Mwilu had appointed Justices Eric Ogola (presiding), Anthony Mrima, and Freidah Mugambi to hear consolidated petitions filed by Gachagua challenging the legitimacy of his impeachment and opposing the swearing-in of his successor, Professor Kithure Kindiki. The appointment was made on October 18, 2024, just two days after the start of Gachagua's Senate impeachment trial.

Gachagua contested the move, arguing that Mwilu, as acting CJ, lacked constitutional authority to constitute the bench. He also raised allegations of bias and conflict of interest against the appointed judges — claims the Court of Appeal dismissed as unsubstantiated.

Among the allegations, Gachagua claimed Justice Ogola’s spouse held a government appointment by President William Ruto, Justice Mrima had links to Senate Speaker Amason Kingi, and Lady Justice Mugambi was a postgraduate law student under Prof. Kindiki. However, it emerged that Moi University does not offer postgraduate law programs. Justice Mugambi holds her advanced degrees from the UK and South Africa.

“We have not identified any impropriety in the conduct of the bench. We do not find the judges to be biased or lacking impartiality,” the court concluded.

While affirming the integrity of the initial panel, the appellate court directed that a new bench be appointed by Chief Justice Koome within 14 days. She has full discretion to reappoint any or all of the judges previously assigned, and may expand the bench to five judges if she deems necessary.

The ruling is seen as a procedural win for Gachagua, though the substance of his impeachment case remains to be heard.