In-depth: Why Court of Appeal ruling did not automatically reinstate Gachagua as DP
In allowing the appeal, the judges were also careful not to give open-ended directions that would have been misinterpreted with the potential of plunging the country into a constitutional crisis
Even as focus centres on former Deputy President Rigathi Gachagua’s standoff with the government following his recent warning of possible post-election violence in 2027, the imminent resumption of cases challenging the manner of his ouster will be keenly watched given the wider ramifications its outcome will have on the next presidential contest.
Following the Court of Appeal ruling that determined that Deputy Chief Justice Philemona Mwilu overreached her authority when she empaneled a three-judge bench to hear petitions relating to his impeachment, Chief Justice Martha Karua has until Friday to constitute a new bench to hear them.
In a strategic move, Gachagua and his co-petitioners have moved to withdraw four constitutional petitions they had filed seeking to stop his impeachment.
The four petitions, identified as part of Cohort 1 were among several challenging the constitutionality of the impeachment process against Gachagua, initiated in the National Assembly and later concluded by the Senate.
“Further, we do not wish to be enjoined in the cohort of petitions being handled by the Bench empaneled by the Hon. Chief Justice,” a notice by Gachagua’s legal team said.
This is seen as strategic after the Court of Appeal rejected claims of bias levelled against High Court judges Eric Ogola, Anthony Mrima and Dr Freda Mugambi clearing the way for their potential retention by Justice Koome to continue hearing the consolidated petition.
It gives the CJ the leeway to pick an entirely new team to hear the cohort 2 petitions.
The bench had initially been empanelled by Justice Koome to hear the initial six petitions before Justice Mwilu picked them to hear the additional petitions.
The May 9 ruling by Court of Appeal judges Daniel Musinga, Mumbi Ngugi and Francis Tuiyot has been the subject of varied interpretations with one school of thought holding that it means that Gachagua is still legally the country’s deputy president unless the reconstituted bench determines otherwise.
Speaking on the NTV Weekend programme on Sunday, People’s Liberation Party (PLP) Leader Martha Karua said that Deputy President Kithure Kindiki should go slow until the court makes clarity on the issue.
“There are two deputy presidents in Kenya; the elected one and the appointed one. After the ruling of the Court of Appeal, Prof Kithure Kindiki should be a bit shy of calling himself deputy president until we receive clarification,” she said.
There are also those who hold that following the court ruling, all the decisions made by the irregularly constituted bench—including those allowing Prof. Kindiki to assume office—were invalidated.
“This ruling reopens a turbulent chapter in Kenya’s political and legal history. With the court recognising Rigathi Gachagua as the de facto Deputy President, the nation is now poised for a fresh judicial review of the impeachment process and the attempted reshuffle. The judiciary’s firm stance on constitutional procedure sends a powerful message: political expediency cannot override the rule of law,” one analyst opined.
Last week, Gachagua’s supporters, emboldened by the court ruling, had even planned to march to the DP’s official residence in Karen to revert it back to him but this did not take place.
But what exactly is the correct legal position?
A close analysis of the Court of Appeal ruling shows that while the judges were clear that the empanelment of a bench is not one of the administrative duties the deputy CJ can exercise in her boss’ temporary absence, they did not entirely dismiss that there are circumstances where she can constitutionally do so.
However, they erred the fact that the reason why it was not the Chief Justice who empanelled the bench was not communicated to the parties at the time of empanelment.
At the same time, the judges found that while Mwilu signed the empanelment directions as DCJ/Ag. CJ, there was no evidence that the she was the acting CJ, or that there existed exceptional circumstances that permitted the deputy CJ to exercise the mandate constitutionally reserved for the CJ by Article 165(4) of the Constitution.
In allowing the appeal, the judges were also careful not to give open-ended directions that would have been misinterpreted with the potential of plunging the country into a constitutional crisis.
“Appeal No. E829 of 2025 is hereby allowed, only to the extent that we do hereby quash the orders of the Deputy Chief Justice dated 18th October 2024 assigning Kerugoya High Court Petition No. E013 of 2024 Thomas Kimotho Maingi v The Deputy President of Kenya Hon. Rigathi Gachagua and anor, Kerugoya High Court Petition No.E015 of 2024 Hon David Munyi Mathenge and anor v The Senate of the Republic of Kenya , Speaker of the Senate and 2 others and Nairobi High Court Petition No. E565 of 2024 H.E. Rigathi Gachagua v The Speaker of the National Assembly of Kenya and 4 others to Honourable Justices Eric Ogolla, Anthony Mrima and Lady Justice Dr Freda. Mugambi,” their final orders read in part.
What this means is that it is now up to the bench to be empaneled by Justice Koome that would determine whether the impeachment of Gachagua by the Senate and the swearing in of Kindiki made the constitutional threshold.
If Gachagua emerges the victor, legal experts hold that it is practically impossible to reinstate him as DP with the remaining remedies likely to include compensation and clearance to vie for political office.
The latter will no doubt have huge ramifications on the next presidential contest.
Gachagua, who last week unveiled the Democracy for the Citizens Party (DCP) as his political vehicle, has declared his intention to run for State House even as the Opposition is exploring the possibility of fielding a joint candidate against President William Ruto.
