In today’s court news, Former Deputy President Rigathi Gachagua has secured a significant legal victory after the Court of Appeal nullified a decision by the Deputy Chief Justice to appoint a three-judge bench to hear multiple petitions challenging his removal from office.
In its ruling, the appellate court directed that the matter be referred to Chief Justice Martha Koome, who will now be responsible for constituting a new bench to hear and determine the petitions at the High Court.
“We hereby allow Appeal No. E829 of 2025 to the extent that we quash the orders issued by the Deputy Chief Justice on October 18, 2024,” the court ruled. “These orders had assigned Kerugoya High Court Petition No. E013 of 2024 (Thomas Kimotho Maingi v The Deputy President of Kenya Hon. Rigathi Gachagua and another), Kerugoya High Court Petition No. E015 of 2024 (Hon. David Munyi Mathenge and another v The Senate and others), and Nairobi High Court Petition No. E565 of 2024 (H.E. Rigathi Gachagua v Speaker of the National Assembly and others) to Justices Eric Ogolla, Anthony Mrima, and Lady Justice Dr. Freda Mugambi.”
The ruling was delivered by a three-judge appellate bench comprising Justices Francis Tuiyott, Daniel Musinga, and Mumbi Ngugi. They ordered that the petitions be placed before the Chief Justice within 14 days for fresh empanelment.
“These matters shall be presented to the Honourable Chief Justice immediately, and in any event, not later than 14 days from today,” they stated.
The decision came after several petitioners argued that their right to a fair hearing had been violated. They claimed that the judges appointed in the Kerugoya bench refused to recuse themselves despite concerns over bias and conflict of interest, which allegedly compromised their impartiality.
In one of the consolidated appeals, activist Enock Aura, represented by lawyer Harrison Kinyanjui requested a five-judge bench, citing the complexity and constitutional nature of the case.
Central to the dispute was whether the Deputy Chief Justice had the constitutional authority to appoint the bench in Kerugoya, especially given its refusal to halt the swearing-in of Kithure Kindiki as Deputy President.
Aura’s legal team argued that Kindiki’s assumption of office was unconstitutional and that proper procedures had not been followed. Specifically, they claimed that the Independent Electoral and Boundaries Commission (IEBC) had not formally declared the Deputy President’s office vacant after Gachagua’s term.
“To date, there has been no declaration, gazette notice, or newspaper publication by the IEBC confirming that the office of Deputy President became vacant following the cessation of Rigathi Gachagua’s tenure,” read one of the petitions.
The appellate judges emphasized that the power to empanel a bench lies solely with the Chief Justice under the Constitution. They clarified that this responsibility is not one that can be delegated to the Deputy Chief Justice.
“While the Deputy Chief Justice can act as Chief Justice under specific circumstances outlined in Section 5(4) of the Judicial Service Act, such instances are limited,” they observed. Empanelling a bench under Article 165(4) is a function strictly reserved for the Chief Justice
