NAIROBI, Kenya – The Court of Appeal has issued a ruling overturning Deputy Chief Justice (DCJ) Philomena Mwilu’s decision to appoint a three-judge bench to hear consolidated petitions filed by former Deputy President Rigathi Gachagua.
The petitions sought to bar Professor Kithure Kindiki from assuming the office of Deputy President, a case that has sparked political tensions within Kenya’s power corridors.
On October 18, 2024, Justice Mwilu appointed Justices Eric Ogola (presiding), Anthony Mrima, and Lady Justice Freidah Mugambi to preside over the petition brought by Gachagua and his allies against Parliament and Kindiki.
The petition challenged the legality of Kindiki’s assumption of office, citing concerns of constitutional irregularities in the appointment process.
However, Gachagua contested the appointments, arguing that Justice Mwilu, as the Deputy Chief Justice and not the substantive Chief Justice, did not have the constitutional authority to empanel a bench.
His legal team claimed that only the Chief Justice, as mandated by Article 165(4) of the Constitution, could assign judges to such a bench.
The Court of Appeal, in a ruling delivered by Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, upheld the principle that only the Chief Justice, Martha Koome, holds the exclusive constitutional mandate to empanel a bench.
The appellate judges rejected Gachagua’s claims of bias against the appointed judges, despite his assertions that Justice Ogola had a conflict of interest due to his spouse’s appointment to a state agency by President William Ruto, and that Justice Mrima had close ties to Senate Speaker Amason Kingi.
The petitioners also raised concerns about Lady Justice Mugambi’s alleged conflict of interest, claiming that she was a postgraduate student of Professor Kindiki.
However, the claim was found to be factually incorrect, as Mugambi holds a Master’s degree from the University of Birmingham and a PhD from the University of Pretoria, not from Moi University, as initially suggested.
Despite these allegations, the Court of Appeal judges found no evidence of bias or conflict of interest among the three judges.
They emphasized that the integrity of the judiciary had not been compromised and ruled that the matter should be referred back to Chief Justice Koome for the appointment of a new bench.
“The discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely vested in the Chief Justice,” the judges stated. “It is the Chief Justice, and she alone, who can determine the number of judges to assign to a matter.”
The appellate court further directed Chief Justice Koome to form a new bench, potentially expanded, to hear the petition, and noted that she had the discretion to reappoint the three judges who were previously involved.
The number of judges assigned to the bench would also be left to her discretion.
In their ruling, the Court of Appeal made it clear that whether or not to include the previously appointed judges was entirely within the prerogative of the Chief Justice.
Gachagua’s legal team has indicated that they may seek further clarification on some aspects of the ruling, and the Chief Justice has 14 days to appoint the new bench.
This ruling marks a crucial moment in the legal proceedings concerning the Deputy President’s office and sets the stage for what promises to be a closely watched judicial process.
