Gachagua impeachment: DCJ Mwilu can empanel a bench, court rules

Court in session during a ruling on Wednesday, October 23. [Collins Kweyu, Standard]

The High Court has ruled that Deputy Chief Justice Philomena Mwilu acted within her authority when she empaneled a three-judge bench to hear cases challenging the impeachment of Rigathi Gachagua.

In a decision delivered on Wednesday, Justices Eric Ogola, Antony Mrima, and Dr. Freda Mugambi found that Mwilu had properly exercised her administrative powers in forming the bench. 

The ruling came after Gachagua’s lawyers questioned the legality of the bench’s formation. 

"Under Article 165(4) of the Constitution, the Deputy Chief Justice is authorised to assign judges when discharging constitutional duties on behalf of the Chief Justice. In this case, we find no fault in the DCJ's decision, particularly since the Chief Justice [Martha Koome] raised no objections," Justice Mrima stated.

On Tuesday, Gachagua’s legal team argued that Article 165 grants the power to appoint a bench solely to the Chief Justice, a responsibility they said could not be delegated to the Deputy Chief Justice. 

Lawyer Kibe Mungai accused the court of bias and raised concerns over the process Mwilu followed.

“The Deputy Chief Justice lacks the authority to empanel a bench. This is unconstitutional. Additionally, on what grounds was an executive application heard on a Saturday? That is a substantive issue,” Mungai argued.

The objection was raised before the official hearing. 

Gachagua is currently facing two legal battles: one challenging his impeachment and another contesting the swearing-in of his replacement.