Appellate Court Hands Gachagua Relief, Rules DCJ Mwilu Bench Selection Unconstitutional
The Court of Appeal determined on Friday, May 9, that Deputy Chief Justice Philomena Mwilu’s decision to appoint a three-judge bench to hear the impeachment case involving former Deputy President Rigathi Gachagua was unconstitutional.
As a result, the Appellate Court declared that the three-judge bench consisting of Anthony Mrima, Frida Mugambi, and Eric Ogolla had ceased to exist.
Gachagua impeachment case:
— Citizen TV Kenya (@citizentvkenya) May 9, 2025
Win for Gachagua as Court of Appeal overrules DCJ Mwilu
Judges rule: DCJ Mwilu lacks the authority to appoint a bench
Mwilu had appointed a 3-judge bench to hear Gachagua’s petition#CitizenFridayNight @OBurrows pic.twitter.com/FF0OJY9mDT
It asked Chief Justice Martha Koome to appoint a new judicial bench within the next 14 days.
The court made up of Court of Appeal President Daniel Musinga and Judges Mumbi Ngugi and Fred Ochieng, concluded that the Chief Justice alone had the authority to appoint a bench of judges.
Furthermore, the court determined that the reasons for DCJ Mwilu’s appointment of the three-judge bench were not disclosed to all parties involved, which is a possible violation 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.
They also rejected the respondents’ argument that such a determination could not be made without enjoining the Chief Justice or Deputy Chief Justice in the matter.
#hotoffthebench
— Joshua Malidzo Nyawa (@joshuamalidzo) May 9, 2025
Court of Appeal holds that the reason (s) why the DCJ and not the CJ empaneled the Gachagua bench was not communicated to parties. Exceptional grounds were not disclosed!
CJ to empanel a bench pic.twitter.com/5df6uLfc7m
They also concluded that the absence of an objection from the Chief Justice could not be interpreted as implicit approval of the DCJ’s actions.
Furthermore, the Court found no indication that DCJ Mwilu was acting Chief Justice at the time, nor were there any disclosed exceptional circumstances justifying her performance of a constitutionally reserved job for the Chief Justice.
The current development in Gachagua’s case is crucial because a new bench may bring a new perspective and outlook to the case.
This offers him optimism, as the freshly formed bench may rule in favour of the former DP.
Even again, this is not a guarantee, as a freshly appointed bench may issue a verdict that does not reflect Gachagua’s desires.
On October 18, 2024, Justice Mwilu assigned Justices Ogolla (presiding), Mrima, and Mugambi to preside over petitions filed by Gachagua and his associates against Parliament and Professor Kindiki.
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The petitions challenged his impeachment as DP and sought to prevent his successor, Professor Kithure Kindiki, from taking office.
However, Gachagua challenged the nominations, claiming that because Justice Mwilu was not the substantive Chief Justice at the time, he lacked the constitutional jurisdiction to appoint a bench.
The former DP initially appealed DCJ Mwilu’s judgment in the High Court, which confirmed the DCJ’s conduct while declining to have the appointed justices recuse themselves.
It is unclear how Gachagua’s case would progress six months after the former DP was removed from office following the success of an impeachment resolution filed in the National Assembly, which was then upheld by the Senate.
Appellate Court Hands Gachagua Relief, Rules DCJ Mwilu Bench Selection Unconstitutional
