NAIROBI, Kenya – The Court of Appeal is set to deliver a ruling on a key legal matter today, May 9, 2025, regarding the authority of Deputy Chief Justice (DCJ) Philomena Mwilu to appoint and assign judges to a bench.
The case, which primarily concerns the impeachment of former Deputy President Rigathi Gachagua, also holds significant implications for the broader legal landscape.
The ruling will determine the legality of a bench DCJ Mwilu appointed in October 2024 to hear a petition challenging the National Assembly’s process of impeaching Gachagua.
The petition questions whether the DCJ had the constitutional authority to empanel the bench, which consisted of Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi.
The appellants, including Gachagua and several others, argue that only the Chief Justice has the constitutional mandate to appoint and assign judges to benches.
They contend that DCJ Mwilu overstepped her powers by constituting the bench, rendering the High Court’s decision in the impeachment case null and void.
In response, the High Court upheld the actions of DCJ Mwilu, ruling that in the absence of the Chief Justice, the DCJ could still perform certain administrative functions.
The court emphasized the principle of continuity in governance, ensuring that administrative duties are carried out even if the Chief Justice is unavailable.
The appeal’s outcome will have wide-reaching consequences, not only for the Gachagua impeachment case but also for other politically sensitive matters, such as the 2020 advisory by former Chief Justice David Maraga, which recommended the dissolution of Parliament for failing to implement the two-thirds gender rule.
The Court of Appeal’s judgment, expected to be delivered by a three-judge bench comprising Court of Appeal President Daniel Musinga, Justice Mumbi Ngugi, and Justice Fred Ochieng, will provide crucial clarity on the limits of the DCJ’s powers in the judicial administration of Kenya’s courts.
