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Post Reply: Former Deputy President Gachagua Petitions Supreme Court to Halt National Assembly's Challenge to Mwilu Ruling

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on August 12, 2025, 6:30 am</div><div id="pl-7480"  class="panel-layout" ><div id="pg-7480-0"  class="panel-grid panel-no-style" ><div id="pgc-7480-0-0"  class="panel-grid-cell"  data-weight="1" ><div id="panel-7480-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
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	<p dir="ltr" data-pm-slice="1 1 []">Former Deputy President Rigathi Gachagua has escalated his legal battle to the Supreme Court, filing a petition to block the National Assembly's attempt to challenge a Court of Appeal ruling that nullified Deputy Chief Justice Philomena Mwilu's decision to appoint a three-judge bench to hear his impeachment case. The petition, filed on August 7, 2025, seeks to prevent the National Assembly from pursuing its application at the Supreme Court, which aims to overturn the appellate court's decision and reinstate the bench comprising Justices Eric Ogola, Anthony Mrima, and Freda Mugambi.</p>
<p dir="ltr">Gachagua's legal team, led by Senior Counsel Paul Muite, argues that the Court of Appeal's May 9, 2025, ruling was constitutionally sound, asserting that only Chief Justice Martha Koome holds the authority to empanel a bench for cases of significant public interest under Article 165(4) of the Kenyan Constitution. The Court of Appeal had quashed Mwilu's October 18, 2024, appointment of the three-judge bench, declaring it unconstitutional due to the lack of evidence that Mwilu was acting as Chief Justice or under exceptional circumstances justifying her action. The appellate court, presided over by Justices Daniel Musinga, Mumbi Ngugi, and Fred Ochieng, emphasized that the Chief Justice's power to assign judges is exclusive and must be transparent, with reasons communicated to all parties involved.</p>
<p dir="ltr">The former Deputy President's petition contends that the National Assembly's move to the Supreme Court is an attempt to undermine the appellate court's ruling and delay his ongoing challenge to his October 2024 impeachment. Gachagua argues that the Assembly's application lacks merit, as it seeks to reinstate a bench he alleges was biased and improperly constituted. His legal team highlights that the Court of Appeal dismissed claims of bias against Justices Ogola, Mrima, and Mugambi but upheld the procedural irregularity of Mwilu's appointment, reinforcing the need for Chief Justice Koome to empanel a new bench within 14 days from May 9, 2025.</p>
<p dir="ltr">Gachagua's impeachment saga began with a National Assembly resolution on October 8, 2024, which cited 11 grounds for his removal, including gross violation of the Constitution, misconduct, and alleged breaches of national and international law. The Senate upheld the resolution on October 18, 2024, leading to Gachagua's ouster and the nomination of Professor Kithure Kindiki as his successor. Gachagua has since filed multiple petitions, initially seeking to block the impeachment process and later challenging its outcome, arguing that it violated his right to a fair hearing and lacked adequate public participation as mandated by the Constitution.</p>
<p dir="ltr">In his Supreme Court filing, Gachagua accuses the National Assembly of attempting to "sanitize an illegality" by seeking to reinstate Mwilu's bench, which he claims was compromised by procedural flaws and potential conflicts of interest. He points to allegations raised during the appellate process, including Justice Mrima's purported ties to Senate Speaker Amason Kingi and Justice Ogola's spouse's appointment to a state agency, though these were dismissed by the Court of Appeal as speculative. Gachagua's team further argues that the Assembly's Supreme Court application is a delaying tactic to frustrate his post-impeachment petitions, which are currently before the High Court awaiting a new bench empanelment by Chief Justice Koome.</p>
<p dir="ltr">The National Assembly, represented by its legal counsel, defends its Supreme Court bid, asserting that Mwilu's actions were within her administrative powers as Deputy Chief Justice, particularly in the absence of the Chief Justice. The Assembly argues that the Court of Appeal's ruling sets a dangerous precedent by limiting the Deputy Chief Justice's ability to perform delegated functions, potentially disrupting judicial operations. They contend that the three-judge bench was lawfully constituted to handle the weighty constitutional issues raised by Gachagua's impeachment, including the validity of Standing Orders 64, 65, and 74, which govern the impeachment process.</p>
<p dir="ltr">Legal experts note that the Supreme Court petition marks a critical juncture in Gachagua's fight to reclaim his position or secure a favorable ruling on the impeachment's constitutionality. The case raises significant questions about judicial independence, the separation of powers, and the procedural integrity of Kenya's impeachment process. Gachagua's legal team has urged the Supreme Court to expedite the hearing, citing the public interest in resolving the matter swiftly to avoid further political uncertainty.</p>
<p dir="ltr">The High Court, in its October 2024 rulings, had certified Gachagua's petitions as raising substantial questions of law, particularly regarding public participation and fair hearing rights under Articles 10, 25, and 50 of the Constitution. Justice Mugambi, in a prior ruling, emphasized the unprecedented nature of a Deputy President's impeachment in Kenya, underscoring the need for a constitutionally compliant process to set a precedent for future cases. However, the Court of Appeal's intervention shifted focus to the procedural question of bench empanelment, prompting Gachagua's latest Supreme Court move.</p>
<p dir="ltr">As the Supreme Court prepares to hear the case, Chief Justice Koome faces pressure to empanel a new bench for the High Court petitions, with Gachagua's team advocating for judges untainted by prior allegations of bias. The outcome of the Supreme Court ruling could determine whether the original three-judge bench is reinstated or if a new panel will hear Gachagua's case, potentially reshaping the legal and political landscape surrounding his impeachment.</p>
<p dir="ltr">The case continues to draw significant public attention, with Gachagua maintaining that his ouster was politically motivated and lacked substantive evidence. His supporters argue that the impeachment process was rushed and failed to meet constitutional thresholds for public participation, while critics, including the National Assembly, assert that the process adhered to Articles 145 and 150 of the Constitution. The Supreme Court's decision will likely have far-reaching implications for Kenya's judicial and political systems, particularly regarding the balance of power between the judiciary and legislature.</p>
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