High Court upholds DCJ Mwilu's formation of three-judge bench in Gachagua impeachment case

High Court has ruled that Deputy Chief Justice (DCJ) Philomena Mwilu acted within the law in empanelling a three-judge bench to hear ousted Deputy President Rigathi Gachagua’s impeachment case

"We do not find any fault in the DCJ assigning judges to sit on this bench, more so when the CJ has not raised any red flag," the Justices, Anthony Mrima, Eric Ogola, and Fridah Mugambi, ruled on Wednesday.

"We wish to point out that the CJ empanelled this very bench to deal with 6 constitutional petitions that challenge the petitioner's impeachment at the National Assembly. On Oct 18, the DCJ empanelled the same bench to deal with petitions challenging the impeachment of the petitioner at the Senate," they added.

Earlier, Justice Mrima delivered a ruling on whether DCJ Mwilu has the authority to empanel judges, noting a stark division in the courts’ positions: one asserts that the DCJ cannot empanel judges, while the other maintains that, although the duty is administrative, it can still be performed by the DCJ.

Justice Mrima stated, “We find no difficulty in affirming that the DCJ's mandate can encompass both administrative and political aspects. This is a constitutionally administrative function. We conclude that the DCJ can assist the Chief Justice in judicial matters, but not in the affairs of the Judicial Service Commission.”

Gachagua, through his lawyers, led by Senior Counsel Paul Muite, argued that the only person who can empanel a bench is the Chief Justice.

Lady Justice Freda Mugambi at the High Court on Wednesday, October 23, 2024. (Photo: Judiciary)

He further demanded to know how DCJ Mwilu appointed a three-judge bench to hear an application by the state seeking to set aside orders blocking Kithure Kindiki's appointment.

Muite further claimed that Mwilu sat in the middle of the night to empanel the bench, which further sat on Saturday in what he argued was a gross violation of the Constitution.

Gachagua's lawyers had also accused the bench, comprising judges Eric Ogola (presiding), Anthony Mrima, and Freda Mugambi, of being partisan and taking part in the ongoing political lynching of the ousted DP.

But the judges dismissed the claim as untrue and unsubstantiated, with Lady Justice Mugambi categorically stating that the bench is committed to upholding the constitution. She added that the bench found that the allegations were totally devoid of facts.

"The bench found it necessary to address these issues to ensure both the completeness of the record and finality in the issues raised," Justice Freda Mugambi stated, adding that remarks by Muite and team were regrettable.

Justice Mugambi in particular faulted Gachagua's lawyers for raising the objections, saying the same undermines the urgency raised by the lawyers.

She added that the bench noted that the issues raised in the petitions were filed before different judges and were certified as urgent and as involving substantive constitutional questions.

"One of the counsels insinuated that this bench is part of the conspiracy to violate the petitioner's rights of a fair hearing under Article 50 of the Constitution. The bench finds that these submissions are without merit, and this court has not made any decisions that support such allegations," stated Lady Justice Mugambi.

Rigathi Gachagua, however, through his lawyer Paul Muite, is considering appealing the ruling, which he argued tainted the reputation of his defence attorneys who were accused of talking to the gallery as the case continued.

"It is damaging to the counsel, and that is an issue that definitely needs to be taken out of the record of this court by the Court of Appeal. It was a very unfair ruling," Muite stated.

The ruling paves the way for the bench to determine consolidated cases in the Rigathi Gachagua impeachment process. The court will convene at 9 am tomorrow, Thursday, October 24, to hear the consolidated case.

Lawyers at the High Court during the hearing of consolidated cases on the impeachment of Rigathi Gachagua as DP on Wednesday, October 23, 2024. (Photo: Judiciary)