Gachagua Moves to Strike Out Supreme Court Appeal on Deputy Chief Justice’s Power to Empanel Judges

Former Deputy President Rigathi Gachagua has moved to the Supreme Court seeking to strike out an appeal challenging the empanelment of the High Court bench handling impeachment-related petitions. In preliminary objections filed through his lawyers at Kamotho Njomo & Company Advocates, Gachagua argues that the appeal has already been overtaken by events and no longer raises a live constitutional dispute.

The issue centers on whether the Deputy Chief Justice had the constitutional authority to empanel a bench under Article 165(4) of the Constitution.

The Court of Appeal on May 9, 2025 quashed orders issued by the Deputy Chief Justice assigning judges to hear the impeachment petitions. It directed that the matter be placed before the Chief Justice for proper empanelment in line with the Constitution. Chief Justice Martha Koome reconstituted the bench following that Court of Appeal ruling.

She appointed a three-judge bench comprising Justices Eric Ogolla, Anthony Mrima and Freda Mugambi. All parties subsequently submitted to the jurisdiction of the three-judge bench, filed their submissions and extensively argued the petitions before the court.

Gachagua argues that intervention by the Supreme Court at this stage would serve no practical purpose and would instead disrupt proceedings that are already substantially underway before the High Court.

"The question of bench composition is moot and no longer a live dispute between the parties," the submissions state, adding that any determination by the apex court would amount to an advisory opinion on an abstract constitutional question. Gachagua further maintains that public interest now lies in safeguarding the stability of the already constituted bench rather than reopening litigation over how it was formed.

In the alternative, he supports the Court of Appeal's finding that the authority to empanel judges under Article 165(4) rests exclusively with the Chief Justice and can only be exercised by the Deputy Chief Justice in exceptional circumstances.

The submissions state that the Constitution expressly assigns the function to the Chief Justice and that any exercise of the mandate by the Deputy Chief Justice must be justified by extraordinary situations such as the death, resignation or removal of the Chief Justice.

Gachagua also rejects claims that empanelment is merely an administrative task. He argues that assigning judges to hear constitutional matters is a judicial function anchored in Article 159 of the Constitution.

The dispute arises from appeals linked to impeachment petitions filed following efforts to remove Gachagua from office. Impeachment-related cases are pending before the High Court in Nairobi and Kerugoya. AllAfrica reported these developments from Capital FM in Nairobi.