The Court of Appeal’s ruling on May 9, 2025, that Deputy Chief Justice (DCJ) Philomena Mwilu lacked the authority to empanel a three-judge bench to hear former Deputy President Rigathi Gachagua’s impeachment petitions, has significant implications for the ongoing legal proceedings.
Next Steps in the Legal Process
1. Empanelment of a New Bench: The Court of Appeal has directed Chief Justice Martha Koome to appoint a new bench to hear Gachagua’s impeachment petitions. She has the discretion to decide the number of judges (minimum of three) and may choose to reappoint any or all of the previously assigned judges. This empanelment must occur within 14 days from the ruling date .
2. Rehearing of the Petitions: Once the new bench is constituted, it will rehear the consolidated petitions challenging Gachagua’s impeachment. The previous proceedings and any decisions made by the bench appointed by DCJ Mwilu are considered null and void due to the improper constitution of that bench .
3. Potential Outcomes:
If the new bench finds the impeachment process unconstitutional: This could lead to the nullification of Gachagua’s impeachment, potentially reinstating him as Deputy President.
If the impeachment is upheld: Gachagua would remain removed from office, and Kithure Kindiki’s position as Deputy President would be solidified.
Broader Implications
This ruling underscores the importance of adhering to constitutional mandates regarding the assignment of judicial duties. It clarifies that only the Chief Justice holds the authority to empanel benches under Article 165(4) of the Constitution, a function deemed administrative in nature . The decision may prompt a review of past cases where benches were constituted by individuals other than the Chief Justice, potentially affecting their validity.
For Gachagua, this development offers a renewed opportunity to contest his impeachment through a properly constituted judicial process. The outcome will not only impact his political career but could also influence the dynamics within Kenya’s political landscape, especially concerning the balance of power and the interpretation of constitutional provisions related to impeachment proceedings.
As the situation evolves, the judiciary’s adherence to constitutional protocols will be closely watched, setting precedents for future cases involving high-ranking government officials.
President Ruto feels that a free Gachagua is less harmful compared to the impeached Gachagua,which is why he wants him free. His intention is for Gachagua,Kalonzo,matiangi to contest separately because he believes their unity might send him home in 2027.
