NAIROBI, Kenya — The Supreme Court has dismissed consolidated applications arising from the legal battle over the impeachment of former Deputy President Rigathi Gachagua, clearing the way for a substantive appeal on whether the Deputy Chief Justice lawfully empanelled a High Court bench to hear related petitions.
In a ruling delivered on Friday, the apex court rejected applications filed by both Gachagua and the National Assembly, making no orders as to costs.
The dispute traces back to October 2024, when the National Assembly impeached Gachagua, triggering a wave of constitutional petitions challenging different stages of the parliamentary process.
Given the gravity of the issues raised, the matters were referred to the Chief Justice for the empanelment of special High Court benches.
On 14 October 2024, Chief Justice Martha Koome constituted a three-judge bench comprising Justices Eric Ogola, Anthony Mrima, and Frida Mugambi to hear the first set of petitions.
As additional cases were filed — including attempts to halt Senate proceedings and block the swearing-in of Prof. Kithure Kindiki as Deputy President — Deputy Chief Justice Philomena Mwilu, acting in the Chief Justice’s absence, empanelled the same bench to handle the expanded disputes.
That second empanelment sparked the legal controversy now before the Supreme Court.
Gachagua challenged the Deputy Chief Justice’s authority to constitute the bench and sought the recusal of the three judges, alleging bias and conflict of interest.
The High Court dismissed both challenges in rulings delivered on 23 and 25 October 2024, holding that bench empanelment is an administrative function that the Deputy Chief Justice may exercise in the Chief Justice’s absence, and finding no basis for recusal.
On appeal, the Court of Appeal overturned the High Court on the empanelment question, ruling that the Chief Justice alone holds the power to constitute High Court benches, save for clearly demonstrated exceptional circumstances.
The appellate court, however, upheld the High Court’s decision declining to recuse the judges.
The National Assembly then moved to the Supreme Court to challenge the Court of Appeal’s interpretation of the law, while Gachagua lodged a cross-appeal.
Before the substantive appeal could be heard, both sides filed applications seeking to strike out each other’s pleadings.
In its ruling, the Supreme Court dismissed all the applications. The court held that it lacks jurisdiction to stay High Court proceedings, that the National Assembly’s appeal raises substantive constitutional issues deserving full determination, and that the documents Gachagua sought to expunge — including correspondence and empanelment directions issued by the Deputy Chief Justice on 18 October 2024 — were central to the dispute and had already been relied upon by lower courts.
“This appeal arises from and hinges on the Deputy Chief Justice’s empanelment directions of 18th October 2024,” the court said, noting that the documents were “intrinsically linked to the appeal.”
The court also declined to summarily dismiss Gachagua’s cross-appeal, ruling that the issues raised, including alleged judicial bias and the handling of recusal applications, fall within its constitutional jurisdiction under Article 50 on the right to a fair hearing.
With the dismissal of the preliminary applications, the Supreme Court has now set the stage for a full hearing to determine whether the Deputy Chief Justice lawfully exercised the power to empanel the High Court bench.
The court emphasised that its review is strictly limited to the legality of the empanelment and does not touch on the merits of Gachagua’s impeachment, which remain pending before the High Court.
