Court to determine whether Gachagua is reinstated as deputy president or...

Former Deputy President Rigathi Gachagua addresses the faithful at Gospel Confirmation Centre in Machakos town on March 2, 2025. [File, Standard] Parliament shot itself in the foot by arguing that Deputy Chief Justice Philomena Mwilu had powers to empanel a three-judge bench that lifted orders freezing the removal of former Deputy President Rigathi Gachagua. Earlier, the two Houses took contradictory stances, asserting that Justice Mwilu lacked authority to appoint judges in cases challenging dissolution of Parliament, as former Chief Justice David Maraga had advised the President regarding failure to meet the two-thirds gender rule. Their lawyer in the case, Ahmednasir Abdullahi, questioned how Justice Mwilu appointed Justices Lydia Achode, Pauline Nyamweya, George Odunga, James Makau, and Antony Ndungu on October 14, 2020, to hear over five cases filed after Maraga advised then President Uhuru Kenyatta to dissolve Parliament. Parliament moved to the Court of Appeal, obtained orders to freeze the cases at the High Court and moved on. Fast-forward to Gachagua's impeachment. It jumped ship to this time arguing that Eric Ogola, Freda Mugambi, and Anthony Mrima were properly appointed. The three judges paved the way for the swearing-in of Deputy President Kithure Kindiki. The two houses may have forgotten that their flip-flop and time would eventually catch up with them and perhaps a fatal mistake. Today, the Court of Appeal will decide whether the DCJ can appoint a bench. Here is the catch, though: The decision will either sink Parliament or Gachagua will have to go back to office. On one hand, Parliament's lifeline has been based on the orders it obtained. Suppose the Court of Appeal concurs with Parliament that the DCJ lacked powers then the cases regarding its dissolution will not proceed until a new bench is appointed, giving Members of Parliament a breather.. However, this will be a blessing for Gachagua as he ought to be back in office since the orders issued by the three judges will be deemed invalid. Perhaps the second highest court in the land will decide in Gachagua's case that Mwilu had the power to appoint a bench. This means orders by Justices Ogola, Mugambi, and Mrima are valid; hence, he remains in political cold. Nevertheless, this will be a problem for Parliament as it means they ought to prepare themselves for hearing of the petitions on dissolution and the President ought to act on the advisory as there will be no orders to hang on. In gachagua's case, he was of the view the three judges could sit to listen to the cases filed to challenge the impeachment by the National Assembly and subsequent removal from office by the Senate as they were not procedurally empaneled. He said they erred by finding that Justice Mwilu can carry out administrative duties on behalf of Chief Justice Martha Koome. According to his lawyer, Paul Muite, the Constitution clearly states that only the CJ can appoint judges to hear cases. He further said the issue is novel and requires urgent intervention. Gachagua argued that if the three judges continue sitting or make other findings and it is found that they were improperly constituted, he will have been denied his right to a fair hearing and access to justice. Gachagua also argued that it was unfair for Justices Ogola, Mugambi, and Mrima to fast-track applications filed by the National Assembly.

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