Former Deputy President and Democracy for the Citizens Party (DCP) leader Rigathi Gachagua suffered a setback after the High Court in Milimani declined to nullify the swearing-in of his successor, Prof. Kithure Kindiki.
In a decision delivered on Thursday July 31, a three-judge bench comprising Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi ruled that the matter was no longer relevant as it had been overtaken by events.
The judges also dismissed a separate application seeking their recusal from the case, which is linked to Gachagua’s impeachment.
“These applications have been overtaken by events following the judgement by the Court of Appeal and by the ruling of this court,”Judge Anthony Mrima stated.
Judge Eric Ogola added, “Those rulings are on record therefore it will be untidy for us to argue over those rulings. If those ruling are not clear, you know how to proceed.”
Gachagua’s legal team had contested the legality of a previous bench constituted by Deputy Chief Justice Philomena Mwilu, arguing that Kindiki’s swearing-in—sanctioned by what they claimed was an unconstitutional panel—was invalid, describing it as “fruit from a poisoned tree”.
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Gachagua Demands Compensation as Court Declares DP Kindiki Legally in Office
Former DP’s defence had also challenged the composition and number of judges on the bench. In a separate petition, lawyer Kibe Mungai—representing other petitioners—claimed the bench had been constituted through forum shopping.
The petition challenged the legality of the current bench and proposed that the matter be referred back to Chief Justice Martha Koome for fresh empanelment.
However, the judges ruled that the empanelment of benches is an administrative function of the Chief Justice under Article 165 of the Constitution, and not a judicial matter subject to review by a bench already constituted.
They further noted that returning the file to the Chief Justice without justifiable cause would invite potential interference, undermine judicial independence, and set a troubling precedent.
“The allegations of bias, conflict of interest, or abuse of power have not been substantiated in this case,” the court stated.
“The Chief Justice’s decision to empanel a bench is final. This application is declined.”
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At the same time, the court dismissed an application by Fredrick Mula, who had sought to substitute Gachagua as the petitioner in four of the over 30 petitions.
The judges ruled that the request by Mula was premature and unwarranted, given Gachagua had notified the Court he was not withdrawing the petitions.
“The application dated June 16, seeking to revoke the notice of withdrawal, is hereby allowed. The application seeking substitution of the petitioner is declined. Parties to bear their own costs,” the bench said.
The court’s ruling effectively leaves Gachagua as the petitioner in the suit he originally liked, even after procedural back-and-forth involving a notice to withdraw and a subsequent attempt to reverse it.
Following the court ruling, Gachagua demanded full compensation from the government, accusing the current regime of kicking him out of office before the end of his term.
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