Supreme Court dismisses applications by Gachagua, National Assembly in impeachment case

The Supreme Court has dismissed consolidated applications arising from the legal battle over the impeachment of former Deputy President Rigathi Gachagua, clearing the way for the substantive appeal on the legality of the High Court bench to proceed.

In a ruling delivered on Friday, the apex court rejected applications filed by both Gachagua and the National Assembly, with no orders as to costs.

The dispute dates back to October 2024, when the National Assembly impeached Gachagua. Following his removal, multiple petitions were filed in various High Courts challenging different aspects of the parliamentary process. Due to the significant constitutional issues involved, the matters were referred to the Chief Justice for the constitution of special benches.

On October 14, 2024, Chief Justice Martha Koome empanelled a three-judge bench comprising Justices Eric Ogola, Anthony Mrima, and Frida Mugambi to hear the first cluster of petitions. As further petitions were filed, including attempts to block Senate proceedings and the swearing-in of Prof. Kithure Kindiki as Deputy President, Deputy Chief Justice Philomena Mwilu empanelled the same bench in the absence of the Chief Justice.

It was this second empanelment that triggered the legal challenge. Gachagua questioned the Deputy Chief Justice’s authority to constitute the bench and sought the recusal of the three judges, alleging bias and conflict of interest. The High Court dismissed both challenges on October 23 and 25, 2024, ruling that empanelment is an administrative function that the Deputy Chief Justice may exercise in the Chief Justice’s absence, and finding no basis for the judges’ recusal.

The Court of Appeal later overturned the High Court on the empanelment issue, holding that the Chief Justice alone has the power to constitute High Court benches, except in clearly demonstrated exceptional circumstances. The appellate court, however, upheld the High Court’s decision declining to recuse the judges.

Following this, the National Assembly moved to the Supreme Court, challenging the Court of Appeal’s interpretation of the law, while Gachagua filed a cross-appeal. Before the appeal could be heard on its merits, Gachagua filed an omnibus application seeking, among other orders, a stay of High Court proceedings, striking out the National Assembly’s appeal, and expunging certain documents from the record. The National Assembly also applied to strike out Gachagua’s cross-appeal.

In its ruling, a five-judge bench of the Supreme Court led by Chief Justice Martha Koome dismissed both applications. The court held that it has no jurisdiction to stay High Court proceedings, that the National Assembly’s appeal raises substantive issues deserving full determination, and that the documents Gachagua sought to expunge such as correspondence and empanelment directions issued by the Deputy Chief Justice on October 18, 2024 were central to the dispute and had already been relied upon by both the High Court and the Court of Appeal.

The court further ruled that Gachagua’s cross-appeal did not meet the strict threshold for summary dismissal. 

Regarding the National Assembly’s attempt to strike out the cross-appeal, the Supreme Court held that the issues raised, including alleged judicial bias and the handling of recusal applications, fell squarely within its constitutional jurisdiction, noting that Article 50 of the Constitution on the right to a fair hearing had been applied by both the High Court and the Court of Appeal.

“This appeal arises from and hinges on the Deputy Chief Justice’s empanelment directions of 18th October 2024,” the court concluded, emphasising that the documents sought for expunging were “intrinsically linked to the appeal.”

With the dismissal of both applications, the Supreme Court has cleared the path for the substantive hearing to determine whether the Deputy Chief Justice lawfully exercised the power to empanel the High Court bench.

The court clarified that its review is strictly limited to the legality of the bench’s empanelment and does not address the merits of Gachagua’s impeachment, which remain pending before the High Court.