Former Deputy President Rigathi Gachagua has secured a win in the case challenging his impeachment after the Court of Appeal quashed a decision by the Deputy Chief Justice Philomena Mwilu to empanel a three-judge bench to hear the petition.

DCJ Mwilu constituted a three-judge bench made up of Anthony Mrima, Frida Mugambi, and Eric Ogolla on October 18, 2024 to hear a petition challenging the removal of Gachagua from office.

The empanelment was challenged by Gachagua’s legal team who argued that only the decision is unconstitutional as only the Chief Justice has the constitutional mandate to do so.

Court of Appeal President Daniel Musinga, Judge Mumbi Ngugi and Fred Ochieng ruled that the that powers to empanel a judge bench are the exclusively reserved for the Chief Justice

The Appellate court established that the reasons why DCJ Mwilu empaneled the three-judge bench, a role that is constitutionally reserved for the CJ were not communicated to all parties.

DCJ Mwilu was neither serving as Acting Chief Justice at the time nor were there exceptional circumstances disclosed to justify her exercise of the role that is constitutionally reserved for the CJ.

While the respondents argued that the actions by the DCJ were endorsed by the CJ owing to no objection, the Court of Appeal judges ruled that the absence of an objection from the Chief Justice could not be taken as an implicit endorsement of the DCJ’s actions which are unconstitutional.

And while we do not doubt the bona fides of the Deputy Chief Justice in constituting the benches, we have discussed why it is critical for the reason or reasons why the Chief Justice did not exercise the constitutional mandate reserved for the Chief Justice to be communicated to the parties and the public, and that reason or those reasons be set out in the empanelment order

The implication of the ruling by the Court of Appeal is that the three-judge bench ceases to exist with a new panel set to be empanelled by the CJ.

Chief Justice Martha Koome was directed to empanel a new judge bench within the next 14 days.

A new bench will thus hear the petition with Gachagua hoping for a favourable outcome as he challenges his impeachment.

Gachagua unceremoniously exited the government following his impeachment by the National Assembly, with the Senate sealing his fate after upholding the impeachment on October 17, 2024.

President William Ruto picked Kithure Kindiki as Gachagua’s replacement, with the former DP rushing to court to challenge his impeachment.

Gachagua failed to appear in the Senate on the day that his fate was sealed as he was admitted at a Nairobi hospital with intense chest pains.

His lawyer Paul Muite requested the Senate to pause the proceedings for a few days until his client (Gachagua) recovered but this was declined.

His legal team stormed out of the Senate, with the lawmakers voting to impeach Gachagua on five of the eleven grounds that were tabled by Kibwezi West Member of Parliament Mwengi Mutuse.

"Accordingly, His Excellency Rigathi Gachagua... ceases to hold office," said Senate Speaker Amason Kingi.

Since then Gachagua has turned into a fierce government critic, trailing his guns on President Ruto who he accuses of betrayal and peddling lies.