NAIROBI, Kenya, May 10 – The Court of Appeal has nullified the Deputy Chief Justice’s decision to assign a three-judge bench to hear three cases linked to Deputy President Rigathi Gachagua’s impeachment proceedings, ruling that the DCJ lacked constitutional authority to assign the matters.
In a judgment delivered on Friday, a three-judge appellate bench overturned the DCJ’s October 18, 2024, directive appointing Justices Eric Ogolla, Anthony Mrima, and Freda Mugambi of the High Court to determine three of ten petitions challenging Gachagua’s impeachment, including a file from Kerugoya High Court.
Justices Daniel Musinga, Mumbi Ngugi and Francis Tuiyott held that only the Chief Justice, as the head of the Judiciary, possesses the constitutional mandate under Article 165(4) to constitute such benches.
The appellate court found that the DCJ was not acting as Chief Justice at the time and no exceptional circumstances justified her intervention.
The judges emphasized that the Chief Justice’s role in assigning judges is an administrative, not judicial, function, and its delegation requires proper justification.
No bias
However, the court dismissed claims of bias against Justices Ogolla, Mrima, and Mugambi, ruling that the appellants failed to prove actual or perceived prejudice.
The bench rejected allegations that Justice Mrima’s past association with Senate Speaker Amason Kingi or Justice Ogolla’s spouse’s appointment to a state agency compromised their impartiality.
“We have not found any conflict of interest or any other reason that would bar the
three from hearing the consolidated matters,” the judges ruled.
“[The bench] have not found any impropriety in the manner in which the bench has conducted or dealt with the matters. We do not perceive the bench to [be] biased or lacking impartiality.”
The Justice Musinga-led nench directed the Chief Justice to constitute a bench within 14 days to hear the three petitions but declined to bar the assignement of the three judges to the matter, leaving the decision to the CJ’s discretion.
“The three matters shall immediately, in any event not later than 14 days from the date hereof be placed before the Honourable the Chief Justice for her Ladyship to empanel a bench under Article 165(4) of the Constitution to hear the matters,” the bench directed.
