The Supreme Court has dismissed two applications arising from the legal battles that followed the impeachment of former Deputy President Rigathi Gachagua, clearing the way for the substantive appeal to be heard on its merits.
In a ruling delivered by a five-judge bench led by Chief Justice Martha Koome, the court rejected an application filed by Rigathi Gachagua seeking to stay ongoing High Court proceedings, strike out the National Assembly’s appeal and expunge documents from the record of appeal.
The court also dismissed a separate application by the National Assembly that sought to strike out Gachagua’s cross-appeal.
The dispute stems from the constitutional events that followed Gachagua’s impeachment in October 2024.
The impeachment motion was introduced in the National Assembly by Kibwezi West MP Mwengi Mutuse and passed by 281 members, surpassing the constitutional threshold.
The Senate later upheld the impeachment, paving the way for the nomination and swearing-in of Professor Kithure Kindiki as Deputy President.
Following the impeachment, several constitutional petitions were filed in the High Court challenging different stages of the process.
The petitions raised substantial constitutional questions, leading to their certification under Article 165(4) of the Constitution and the empanelment of a three-judge bench.
A key dispute arose over the decision by the Deputy Chief Justice to empanel the High Court bench in the absence of the Chief Justice.
Gachagua challenged the legality of that empanelment and later sought the recusal of the judges, citing alleged bias.
The High Court dismissed both challenges.
However, the Court of Appeal partly overturned that decision and held that the power to empanel judges under Article 165(4) is an exclusive constitutional function of the Chief Justice, and may only be exercised by the Deputy Chief Justice in exceptional and clearly demonstrated circumstances.
That finding prompted the National Assembly to move to the Supreme Court, arguing that the Deputy Chief Justice acted lawfully.
Gachagua, on his part, filed a cross-appeal, faulting the appellate court for failing to order the recusal of the High Court judges.
Before the Supreme Court, Gachagua sought orders stopping the High Court proceedings pending the determination of the appeal and cross-appeal.
However, the court held that it has no jurisdiction to stay proceedings before the High Court, noting that its power to grant such relief is limited to matters pending before the Court of Appeal.
The judges also declined to strike out the National Assembly’s appeal, finding that it raises serious constitutional issues that require full hearing and determination.
The court further ruled that the documents Gachagua sought to have removed from the record were central to the dispute and had already been relied on by both the High Court and the Court of Appeal.
The Supreme Court similarly dismissed the National Assembly’s bid to summarily strike out Gachagua’s cross-appeal, holding that it did not meet the threshold for summary dismissal.
As a result, both the appeal and the cross-appeal will now proceed to a full hearing, where the Supreme Court is expected to give final guidance on the scope of the Deputy Chief Justice’s powers and the constitutional framework governing the empanelment of judges
