DCJ Mwilu Lacked Authority to Assign Judges in Gachagua Impeachment Case – Court of Appeal

The Court of Appeal has declared that the Deputy Chief Justice acted beyond her powers when she selected the three-judge panel to hear petitions challenging the impeachment of former Deputy President Rigathi Gachagua.

The appellate court, led by its President, Daniel Musinga, alongside Justices Mumbi Ngugi and Fredrick Ochieng, ruled that DCJ Philomena Mwilu’s decision to appoint that bench violated constitutional provisions, as the authority to assign judges in such cases rests solely with the Chief Justice or a delegated judicial officer.

“And while we do not question the good intentions of the Deputy Chief Justice in setting up the bench, we have explained why it is important that the reason—or reasons—why the Chief Justice did not exercise this constitutional role be clearly communicated to the parties involved and to the public, and that reason or those reasons be set out in the empanelment order,” the appellate judges said in the Friday ruling.

Their decision, now officially nullifies the bench made up of Justices Anthony Mrima, Frida Mugambi and Eric Ogolla, which the DCJ appointed in October 2024 to hear Gachagua’s case.

The lawyers of Gachagua and the interested parties in the case argued before the Court of Appeal that the Constitution clearly states that the roles of judicial officers are in line with the “doctrine of continuity” in governance, which demands that the administration of duties and the application of constitutional provisions remain uninterrupted.

For the former DP, this opened the door to a fresh hearing before a new bench, which could offer a different perspective on his impeachment challenge.

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