Appeal court overturns three-judge bench in Gachagua impeachment case

The Court of Appeal has quashed the decision by Deputy Chief Justice Philomena Mwilu to appoint a three-judge bench to hear consolidated petitions filed by former Deputy President Rigathi Gachagua seeking to block his successor, Prof Kithure Kindiki.

Justice Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott said that Mwilu did not have constitutional powers to appoint the three-judge bench.

Justice Philomena Mwilu had on October 18, 2024, appointed Judges Eric Ongola (presiding) and Justice Anthony Mrima and Lady Justice Freidah Mugambi to hear and determine multiple petitions by Gachangua and his associates against the Parliament and Kindki.

Gachagua's lawyers led by Paul Muite, argued that the impeachment process initiated by the National Assembly was flawed, maintaining that the DP was not afforded a fair hearing due to the limited time frame imposed in just 12 days.

Muite emphasised that the standing orders, which guided the impeachment, contravened constitutional requirements for due process.

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The DP has argued that the public participation process mandated by law was insufficient and merely a sham, depriving Kenyans of the opportunity to engage meaningfully in such a critical process.

Gachangua further said Mwilu did not have the constitutional powers to appoint the bench because she was not the substantive Chief Justice and could not discharge the duties of the CJ at the time.

And in Feb this year, the Court of Appeal issued conservatory orders stopping the High Court from hearing the cases.

The judges issued a stay order on the more than 40 cases challenging the impeachment, pending the determination of the appeal filed by Gachagua on the High Court's earlier judgment.