Gachagua seeks dismissal of appeal over impeachment bench empanelment

Former deputy president Rigathi Gachagua with wife Dorcas Gachagua at the Milimani high court for the hearing of his impeachment case/EZEKIEL AMING'A 

Former Deputy President Rigathi Gachagua has asked the Supreme Court to dismiss an appeal challenging the empanelment of a bench to hear petitions arising from his impeachment.

In submissions opposing the appeal, Gachagua argues that the matter has already been overtaken by events.

He says the dispute over whether the Deputy Chief Justice Philomena Mwilu could empanel a bench under Article 165(4) of the Constitution no longer presents a live controversy capable of judicial determination.

“The determination would have no impact on the lives or interests of parties,” Gachagua stated in his submissions dated May 11, 2026.

The former Deputy President argued that the issue became moot after the Court of Appeal of Kenya quashed the earlier empanelment by the Deputy Chief Justice and directed that the matter be placed before Chief Justice Martha Koome for constitution of a fresh bench.

Following the appellate court’s directive issued on May 9, 2025, the Chief Justice subsequently appointed a three-judge bench comprising Justices Eric Ogola, Anthony Mrima and Freda Mugambi to hear the consolidated petitions.

Gachagua told the apex court that all parties have since submitted to the jurisdiction of the newly constituted bench, filed submissions and substantially argued the matter before the court.

He further notes that the proceedings are already ongoing, with the bench scheduled to hear the cross-examination of Dr Daniel Gikonyo regarding Gachagua’s alleged hospitalisation during the impeachment process in October 2024.

According to Gachagua, interfering with the bench at this stage would only delay the hearing and determination of the petitions without offering any practical benefit to the parties involved.

“The question of bench composition is moot and no longer a live dispute between the parties,” he argues.

He relied on previous Supreme Court decisions on the doctrine of mootness, arguing that courts should avoid determining disputes that have been overtaken by events or no longer have practical significance.

The former Deputy President maintains that the appeal no longer raises an existing controversy because the contested bench was already reconstituted and proceedings are actively underway.

He also insists that public interest now lies in maintaining stability of the current bench handling the petitions.

In the alternative, Gachagua defended the Court of Appeal’s finding that the power to empanel a bench under Article 165(4) is vested solely in the Chief Justice and can only be exercised by the Deputy Chief Justice in exceptional circumstances.

However, he faulted the appellate court’s characterisation of the empanelment role as an administrative function, arguing instead that it is a judicial constitutional mandate.

He warned that allowing concurrent exercise of empanelment powers by both the Chief Justice and Deputy Chief Justice could result in conflicting bench appointments and institutional confusion within the Judiciary.

The National Assembly had earlier filed an appeal to challenge the decision of the Court of Appeal of Kenya which quashed the empanelment of a three-judge bench by Deputy Chief Justice Philomena Mwilu.

Gachagua, consequently, urged the Supreme Court to dismiss the appeal either for mootness or on its merits.