CJ Koome told to form new Gachagua bench

Chief Justice Martha Koome has been directed by the Court of Appeal to appoint a new bench within two weeks to hear petitions filed by former Deputy President Rigathi Gachagua, challenging the appointment of Professor Kithure Kindiki as his successor.

This follows a ruling that overturned Deputy Chief Justice Philomena Mwilu’s earlier move to assign three judges to the case, which Gachagua contested.

The appellate court, comprising Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, ruled in Friday that only the Chief Justice has the constitutional authority to appoint such a bench under Article 165(4) of the Constitution.

"The discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely vested in the Chief Justice. It is the Chief Justice, and she alone, who can determine the number of judges to assign to a matter," the court said.

Gachagua had taken issue with Justice Mwilu’s October 18, 2024, decision to name Justices Eric Ogola, Anthony Mrima, and Freidah Mugambi to hear the consolidated petitions against Parliament and Professor Kindiki.

He argued that Mwilu, who was not the substantive Chief Justice at the time, lacked the constitutional power to empanel a bench.

Although the appellate judges rejected Gachagua’s allegations of bias against the three judges, they agreed that the process of appointing them had not followed the Constitution.

They clarified that only the Chief Justice can select the number and identity of judges to sit on such a bench.

The Court of Appeal left it to Chief Justice Koome to decide whether to reappoint any or all of the original judges.

She also has the discretion to determine whether the bench will have three or five judges.

Gachagua’s legal team had raised questions about the impartiality of the previously selected judges.

They claimed that Justice Ogola’s spouse had received a government appointment from President William Ruto, and that Justice Mrima had links to Senate Speaker Amason Kingi.

Additionally, lawyer Ndegwa Njiru alleged that Justice Mugambi had studied under Kindiki at Moi University, suggesting a conflict of interest.

However, the appellate court dismissed these claims, stating that they lacked evidence.

They also noted that the claim about Justice Mugambi was factually incorrect, as Moi University does not offer postgraduate law courses.

Justice Mugambi actually holds advanced degrees from the University of Birmingham and the University of Pretoria.

In their ruling, the judges said, "We have not identified any impropriety in the conduct of the bench. We do not find the judges to be biased or lacking impartiality. Whether to include them in the reconstituted bench is a matter entirely within the discretion of the Chief Justice."

The court directed that the petitions be forwarded to Chief Justice Koome within 14 days for her to take action in line with the Constitution.