Gachagua reignites the battle regarding Mwilu’s decision to appoint judges to the bench.

Impeached Deputy President Rigathi Gachagua has filed an appeal against a ruling that affirmed Deputy Chief Justice Philomena Mwilu’s authority to form a three-judge panel to adjudicate matters related to his removal.

In his appeal, Gachagua requests that the Appellate Court suspend the High Court proceedings set to resume on Tuesday, October 29.

The three-judge panel, comprised of Justices Eric Ogola, Anthony Mrima, and Fredah Mugambi, is scheduled to hear an application from the Attorney General and the National Assembly, seeking to overturn an order preventing Prof. Kithure Kindiki from taking office as Deputy President.

Through his lawyer, John Njomo, Gachagua contends that the ruling affirming Mwilu’s ability to assign judges is flawed. He argues, “The ruling was based on an incorrect interpretation of the letter and spirit of the Constitution.” Gachagua maintains that only the Chief Justice is empowered to empanel and assign judges, not the Deputy Chief Justice.

Last Wednesday, a three-judge panel ruled in the case concerning Gachagua, stating that the Deputy Chief Justice is indeed authorized to form a bench. Justice Anthony Mrima clarified that the Deputy Chief Justice can perform the Chief Justice’s duties in their absence for valid reasons.

“It is clear that the Deputy Chief Justice can assign judges under Article 165(4) of the Constitution whenever they are executing constitutional functions on behalf of the Chief Justice,” Justice Mrima stated in the ruling.

The panel did not find any fault in the Deputy Chief Justice’s decision to assign judges for this case, particularly as the Chief Justice had not raised any objections. The bench was tasked with determining the legality of the Deputy Chief Justice’s authority to constitute a panel for this matter.

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