Chief Justice Martha Koome has reappointed the same three-judge bench to preside over petitions challenging the impeachment of former Deputy President Rigathi Gachagua.
In a notice issued on Friday, Justice Koome named Justices Eric Ogola, Anthony Mrima, and Dr Freda Mugambi to handle the consolidated petitions. She also directed that the cases be mentioned before the bench on May 29 for further directions.
“Kindly take notice that the Honourable Chief Justice has empaneled a bench comprising of Hon Justice E. Ogola (Presiding), Hon Justice A. Mrima and Hon Lady Justice Dr F. Mugambi in the following petitions,” the notice to advocates read.
The appointment comes after Mr Gachagua successfully challenged an earlier empanelment of the same judges by Deputy Chief Justice Philomena Mwilu. He had argued that only the Chief Justice holds the constitutional authority to form such a bench.
On May 9, Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott upheld that position, affirming that empaneling judges is a constitutional duty reserved solely for the Chief Justice.
“It has to be remembered that the duty to empanel is reserved for the Chief Justice by the Constitution, and we do not think it is one of those administrative duties that the Chief Justice can allocate or pass over to the Deputy Chief Justice by dint of section 5(2) of Judicial Service Act (JSA),” the judges ruled.
Justice Koome had originally appointed the same trio—Justices Ogola, Mrima, and Mugambi—to hear three petitions filed before Mr Gachagua’s impeachment was confirmed by the Senate. Following the Senate’s decision to uphold the impeachment, additional petitions were filed, including two submitted in Kerugoya. The High Court there issued temporary orders halting the process to replace Gachagua, pending further guidance.
Justice Richard Mwongo, sitting in Kerugoya, later referred the two files to the Chief Justice, citing the significant constitutional questions raised, which he said warranted determination by a multi-judge bench.
The case files were then transferred to Nairobi. On October 18, 2024, the Deputy Chief Justice appointed the same judges to handle them, along with a third petition filed in Nairobi. This move prompted a protest from Mr Gachagua’s legal team.
Represented by Senior Counsel Paul Muite, Gachagua contested the DCJ’s authority to appoint judges, reinforcing the argument that such powers rest exclusively with the Chief Justice.
In response, the appointed judges dismissed the objections, arguing that the Chief Justice’s powers under Article 165(4) of the Constitution can be administratively delegated, and the DCJ can act on her behalf.
Still dissatisfied, Gachagua appealed, and the Court of Appeal sided with him, declaring that the DCJ had overstepped her authority.
“It is the Chief Justice, and she alone, who can decide the number of judges to assign a matter. Similarly, it is only the Chief Justice who can decide which judge to assign to a bench, and this answers the related prayer that we direct that the Chief Justice excludes the three named judges from the bench to be constituted afresh,” the appellate judges ruled.
With the matter now reset under the Chief Justice’s authority, the reappointment of the same bench under proper constitutional procedure marks the latest development in the high-profile legal battle over Gachagua’s impeachment.
Read: DCJ Mwilu Lacked Authority to Assign Judges in Gachagua Impeachment Case- Court of Appeal
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