In a landmark ruling, the Court of Appeal has quashed the October 2024 orders by Deputy Chief Justice (DCJ) Philomena Mwilu assigning judges to hear petitions related to the impeachment of former Deputy President Rigathi Gachagua.
Delivering its verdict on May 9, 2025, the appellate court allowed Appeal No. E829 of 2025, setting aside Mwilu’s decision to appoint Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi to hear three constitutional petitions filed in Kerugoya and Nairobi.
The court held that such a function is constitutionally reserved for the Chief Justice under Article 165(4), and DCJ Mwilu’s actions, done during CJ Martha Koome’s absence, lacked both legal standing and procedural justification.
“The absence of the Chief Justice does not vest the DCJ with the substantive powers of the office,” the bench ruled, stating that no exceptional circumstances had been demonstrated to warrant the DCJ’s move.
The ruling emphasized that the exercise of judicial administrative powers must strictly adhere to constitutional guidelines.
The court further directed that the three petitions—filed by Thomas Kimotho Maingi, David Munyi Mathenge, and Gachagua himself—be re-submitted to the Chief Justice within 14 days for proper empanelment of a new bench.
However, the Court declined to compel CJ Koome to constitute a five-judge bench, asserting that such discretion lies solely with her office.
The appellate judges also upheld the High Court’s earlier dismissal of the recusal request against the previously assigned judges, finding no evidence of bias or impropriety.
Both Appeal No. E022 of 2025 and Appeal No. E829 of 2025 were considered matters of public interest, prompting the court to make no orders as to costs.
This ruling is expected to ripple through other cases involving questions of judicial authority, including challenges to previous bench assignments made by the DCJ during CJ Koome’s absences.
