Days after the Court of Appeal handed former Deputy President Rigathi Gachagua a lifeline in his impeachment case, Chief Justice Martha Koome has reappointed the same bench previously constituted by her deputy, Philomena Mwilu, to hear the petitions.
Acting on the appellate court’s directive to appoint a bench to handle three consolidated matters relating to Gachagua’s impeachment, CJ Koome in a notice on Friday, May 23, named Principal Judge of the High Court Eric Ogola and Justices Freda Mugambi and Anthony Mrima to preside over the petitions.
“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 stated
This effectively reinstates the same judicial panel just days after the Court of Appeal ruled that the earlier bench, appointed by Deputy Chief Justice Mwilu on October 18, 2024, did not meet the constitutional threshold.
In their ruling, a three-judge appellate bench comprising Court of Appeal President Daniel Musinga and Justices Mumbi Ngugi and Fred Ochieng faulted the process through which DCJ Mwilu empanelled the original bench. They noted that the reasons why Mwilu took that step were never communicated to the involved parties.
Why Koome appointed same bench
While the Court of Appeal directed CJ Koome to appoint a bench to hear the consolidated petitions, it declined the appellants’ request to exclude the three judges from consideration. The judges emphasized that only the Chief Justice has the authority to assign judges to any given bench.
The ruling came after Gachagua, along with David Munyi Mathenge, Peter Kamotho, Grace Muthoni, Clement Muchiri, and Edwin Munene, filed a petition at the Court of Appeal challenging a High Court ruling which upheld the DCJ’s decision to empanel a bench and rejected calls for the appointed judges to recuse themselves.
Also Read: CJ Martha Koome Closes the Files of 2 Judges; What this Means
The court affirmed that, in the absence of the Chief Justice, the DCJ is permitted to carry out certain administrative functions, in line with constitutional provisions that safeguard the continuity of judicial operations.
However, the Court of Appeal gave Gachagua a lifeline when the judges held that, while the Judicial Service Act permits the CJ to delegate duties to the DCJ, the function in question—empaneling a bench for matters raising substantial constitutional questions—is a constitutional responsibility.
Court of Appeal ruling on Gachagua impeachment case
They rejected the respondents’ argument that no such determination could be made without enjoining the Chief Justice or Deputy Chief Justice in the case.
They further ruled that the absence of an objection from the Chief Justice could not be taken as an implicit endorsement of the DCJ’s actions.
In addition, the Court found no evidence that DCJ Mwilu was serving as Acting Chief Justice at the time, nor were there any disclosed exceptional circumstances justifying her exercise of a role constitutionally reserved for the Chief Justice.
Also Read: Win for Gachagua as Court Rules on DCJ Mwilu’s Powers in His Impeachment Case
The judges at the same time directed Chief Justice Koome to empanel a fresh bench to hear the matter.
“The three matters shall immediately, in any event not later than 14 days from the date hereof be placed before the Honourable the Chief Justice for her Ladyship to empanel a bench under Article 165(4) of the Constitution to hear the matters,” read part of the ruling.
On the request to order Koome to empanel an expanded bench of five judges, the Court declined, stating that the discretion granted under Article 165(4) to constitute such a bench lies solely with the head of the Judiciary.
Additionally, the appellate upheld the High Court’s decision to dismiss the recusal application, stating that it found no conflict of interest or other valid reason to bar the three judges from hearing the consolidated petitions.
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