Parliament, Kindiki battle Gachagua over DCJ powers to empanel bench

DCP Leader Rigathi Gachagua during an interview at his Karen residence in Nairobi on July 22, 2026. [Kanyiri Wahito, Standard]

Parliament and Deputy President Kithure Kindiki clashed with the former Deputy President Rigathi Gachagua on Thursday in a row over whether the Deputy Chief Justice (DCJ) has powers to appoint High Court Judges to sit on benches of three to hear cases while the Chief Justice is still in office.

Parliament, in its argument before Supreme Court Judges Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, William Ouko, Mohamed Ibrahim, argued that although the law envisages the DCJ to act only when no CJ is owing to death, removal from office or total incapacity, the function of empanelling judges is an administrative one and can be delegated.

Lawyer Moses Kipkogei, in his argument, said that the appointment of High Court Judges Eric Ogola, Freda Mugambi and Anthony Mrima by Justice Philomena Mwilu was above board as it was done in good faith.

“The Deputy Chief Justice can act in instances where the Chief Justice is on leave or incapacitated. This role in appointing benches is administrative and, consequently, cannot exercise judicial powers in the High Court. Being an administrative power, it is a delegative power,” argued Kipkogei in an argument backed by Kindiki’s lawyer Kenson Mutethia

“The DCJ was empanelling the bench in good faith. The CJ went ahead and appointed the same bench; hence, the court should find that the DCJ has powers and can appoint a bench,” Mutethia added.

While opposing the case, Gachagua’s lawyers Dudley Ochiel and John Njomo told the court that the issue had been resolved once the Chief Justice Martha Koome appointed the bench after the Court of Appeal’s verdict that only the CJ can form the benches.

Njomo and Ochiel insisted that Parliament was illegally involving the Supreme Court’s powers to issue advisories while the issue was now water under the bridge.

“The issue is moot as all parties subjected themselves before the freshly empanelled bench by the Chief Justice. Compliance was achieved, and there is nothing to be determined by the Supreme Court,” argued Njomo.

 Ochiel added that it was clear there is no vacuum in the office of the Chief Justice; hence, her deputy could not make decisions on her behalf.

“The framers were aware of the existence of DCJ and allocated to her the roles they intended her to step into in the event we have no CJ. They include swearing in the President and Deputy President. There is no vacuum when the CJ is in office,” he said.

The dispute arose from Mwilu's October 18, 2024 appointment of the three-judge bench. Initially, Gachagua, represented by lawyer Paul Muite, challenged the appointment, arguing that Mwilu was not the substantive Chief Justice and had not taken an oath as Acting Chief Justice.

Muite also alleged bias and conflicts of interest involving the appointed judges. He claimed that the bench had been empanelled for a particular purpose.

While the Court of Appeal dismissed claims of bias against the judges, it found merit in Gachagua's challenge to the appointment process.

"We quash the orders of the Deputy Chief Justice dated October 18, 2024 assigning the three cases to Justices Ogola, Mrima and Mugambi," the court ruled. However, it declined to bar Chief Justice Koome from reappointing these judges to a new bench, leaving that decision to her discretion.

Gachagua's appeal included allegations of bias against the appointed judges. Justice Mrima was accused of having a close relationship with Senate Speaker Amason Kingi, supported by photographic evidence of Kingi attending Mrima's wedding in 2021.

The court dismissed this claim as speculative, noting that the wedding occurred over three years before the petitions were filed and that Kingi was not Senate Speaker at the time.

"There must be a clear and reasonable apprehension of bias, which was not met," the court stated.

Similarly, Justice Ogola faced accusations of a conflict of interest due to the alleged appointment of his spouse, Florence Auma Oluoch, to a state agency by President William Ruto, a political ally of Kindiki.

The court found no evidence that Oluoch is Ogola's spouse and clarified that her appointment to the Kenya Water Towers Agency Board was made by Cabinet Secretary Soipan Tuya, not the President.

"Family members of judges are entitled to pursue independent careers," the court ruled, rejecting the claim.

Allegations against Justice Mugambi, accused of being a postgraduate student under Kindiki at Moi University, were also dismissed.

The court confirmed that Moi University does not offer postgraduate law programs and that Mugambi earned her Master's degree from the University of Birmingham and a PhD from the University of Pretoria.

Gachagua also challenged the bench's issuance of electronic directions on a Saturday, alleging a breach of judicial norms.

The court found no evidence of a formal sitting on that day and noted that the directions complied with Practice Direction No 19(ii), aimed at ensuring expeditious resolution of disputes.

However, the judges urged Chief Justice Koome to establish formal guidelines for handling urgent matters during weekends and holidays, particularly in digital case management.