Supreme Court to rule on whether ex-DP Gachagua was properly impeached

Former Deputy President Rigathi Gachagua will tomorrow, January 30, 2026, know the fate and the procedural legality of his impeachment as the Supreme Court makes a key decision on whether a three-judge bench appointed by Deputy Chief Justice Philomena Mwilu and chaired by Justice Erick Ogola was properly constituted to hear and determine the impeachment-related dispute.

The Supreme Court headed by Chief Justice Martha Koome will determine whether her deputy, Mwilu acted within her constitutional authority to constitute judges to hear petitions challenging his removal from office.

The apex court will make a ruling if Mwilu’s appointment of a High Court bench to lift interim orders against his removal was legally valid, a decision expected to have key political ramifications either way.

The court’s decision is expected to clarify whether the bench had the legal authority to preside over the matter.

Legal experts say the ruling will provide critical guidance on judicial procedure in impeachment cases, particularly on how benches are constituted in high-stakes constitutional disputes involving senior public officials.

If the Supreme Court finds that the bench was improperly constituted, it could reopen legal questions surrounding the impeachment process. Conversely, a finding that the bench was lawfully established would likely affirm the decisions that followed Gachagua’s removal from office.

The three-judge panel had lifted conservatory orders blocking Gachagua’s removal in November 2024, clearing the way for Prof Kithure Kindiki to be sworn in as his replacement.

The Court of Appeal ruled that the constitution reserves the power to empanel benches to the Chief Justice, except under narrowly defined conditions, and that Mwilu’s appointment of the bench to handle impeachment-related petitions was therefore unlawful.

Dissatisfied, the National Assembly petitioned the Supreme Court to overturn the decision and validate Mwilu’s actions.

In response, Gachagua filed a cross-appeal and a request for the apex court to summarily dismiss Parliament’s case. He accuses the National Assembly of abusing judicial processes by adopting inconsistent positions regarding the Deputy Chief Justice’s powers.

“Parties are bound by their pleadings. The doctrine of judicial estoppel bars parties from asserting contradictory positions to suit. Therefore, the National Assembly cannot now challenge the Deputy Chief Justice’s authority under Article 165(4) of the Constitution after previously benefiting from her actions,” Gachagua’s lawyers, Dudley Ochiel and Kamotho Njomo said.

The lawyers argued that permitting such reversals would undermine judicial integrity and public confidence in the courts. They also accused Parliament of manipulating constitutional interpretation for convenience.

Beyond seeking dismissal of the appeal, Gachagua has requested that the Supreme Court suspend ongoing High Court proceedings pending resolution of his cross-appeal on the bench’s legality.

The contested bench, composed of Justices Eric Ogolla, Anthony Mrima and Fredah Mugambi, was assigned by Mwilu to hear petitions at the Kerugoya High Court. It discharged interim orders that had halted Gachagua’s removal, a decision he says was invalid due to jurisdictional flaws arising from Mwilu’s unconstitutional appointment.

He further criticises the Court of Appeal for not ordering the bench’s reconstitution despite ruling that Mwilu acted without authority, noting that judicial practice requires a fresh bench when jurisdiction is disputed.

Gachagua has also asked the court to remove documents submitted by the National Assembly during the appeal, claiming they were added without proper authorisation. His lawyers said the materials were introduced to strengthen Parliament’s position and would unfairly prejudice proceedings.

The National Assembly has rejected these claims, insisting the Court of Appeal misinterpreted the Constitution. Parliament maintains that the Deputy Chief Justice has the authority to empanel benches while deputising for the Chief Justice and that the Constitution does not demand proof of the Chief Justice’s medical or physical incapacity.

Its lawyers argued that the appellate court wrongly introduced a standard of “electronic unavailability,” asserting that judicial administration must continue uninterrupted during the Chief Justice’s temporary absence.

The Court of Appeal had reasoned that the Chief Justice could empanel benches remotely, finding no evidence she was unreachable or incapacitated at the time. Parliament insists that the ruling unjustly curtailed the Deputy Chief Justice’s role and effectively amended the Constitution through interpretation.

The case has attracted widespread attention, touching on issues of impeachment procedures, separation of powers, parliamentary accountability and consistency in constitutional litigation.