Over 40 cases challenging Gachagua’s impeachment suspended pending appeal

Over 40 cases challenging the impeachment of former Deputy President Rigathi Gachagua have been put on hold as the Court of Appeal considers his petition questioning the legality of a three-judge bench appointed by Deputy Chief Justice Philomena Mwilu.

Gachagua had moved to the appellate court, contesting the authority of Justice Mwilu to appoint a three-judge bench to hear over 40 cases related to his impeachment.

He insisted that appointing an uneven-numbered bench is a constitutional function reserved exclusively for Chief Justice Martha Koome.

“Meanwhile, the High Court proceedings have stayed to await the determination of these consolidated appeals,” Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott ruled.

The decision comes ahead of the scheduled mention of the petitions before Justices Eric Ogola, Anthony Mrima and Fred Mugambi, who were set to provide directions on the hearings.

Through his lawyer, Senior Counsel Paul Muite, Gachagua faulted the High Court’s ruling that upheld the DCJ’s authority to appoint the bench. He argued that the mandate to empanel judges under Article 165(4) of the Constitution is an administrative function vested solely in the Chief Justice.

However, the three-judge bench maintained that in the absence of the Chief Justice, the DCJ could exercise that role to ensure continuity in governance and the seamless administration of justice.

“In our view, and in line with the doctrine of continuity in governance, the drafters of our Constitution were deliberate in ensuring that the administration of duties and application of constitutional provisions remain uninterrupted,” the judges said.

DCJ exclusion

Muite, however, countered this interpretation, arguing that if the High Court had applied a purposive construction of the law, it would have acknowledged that Kenyans deliberately granted the authority under Article 165(4) exclusively to the Chief Justice, excluding the DCJ.

“The circumstances surrounding the empanelment of the High Court bench drove a dagger through public confidence in the administration of justice,” he said, urging the appellate court to rectify the issue.

Muite further pointed out that the usual practice requires the High Court, upon certifying a matter as raising a substantial question of law, to forward the file to the Chief Justice. The CJ then records the empanelment, date, and signature, and informs all parties. He argued that this procedure was not followed in Gachagua’s case.

“The Deputy Chief Justice orally and selectively assigned two matters late that day to the bench she constituted,” Muite said.

He also raised concerns about the urgency with which the court handled the matter, noting that the bench, which had earlier informed Gachagua that the earliest hearing date was October 29, suddenly convened the following day, a Saturday, to hear an application by the Attorney General seeking to lift conservatory orders.

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“The bench, which had said it could not hear him before October 29, suddenly convened on a Saturday and was ready to hear the Attorney General’s application on Monday, October 21, 2024,” Muite added.

He termed this move a violation of Section 10(7) of the High Court Organisation and Administration Act, which requires authorisation from the Chief Justice for a court to sit on a non-working day.

“So, the Deputy CJ constitutes this bench on Friday night, it sits the following day, Saturday, and is now available to hear the Attorney General’s application for discharge of conservatory orders on Monday. What perception does this rush create in the minds of ordinary Kenyans?” he posed.

According to Muite, the expedited nature of the proceedings created a public perception that the court was aligning itself with Parliament and the Executive in the rapid removal of Gachagua from office.

The former Deputy President is also contesting the lifting of a conservatory order that had blocked Prof Kithure Kindiki from assuming office. Kindiki was sworn in as the third Deputy President on November 1, 2024, a day after the High Court lifted the order.

In his petitions, Gachagua argued that his impeachment was based on falsehoods and deliberate misrepresentations. He contends that the motion was driven by deceit and suppression of material facts, designed to achieve an improper and unconstitutional outcome.

He further asserts that the one-day public participation process initiated by Parliament was insufficient to overturn the sovereign will of the people who elected him and President William Ruto in the last general election.

The court scheduled the ruling on the appeal for May 9.