Supreme Court declines to suspend Gachagua's impeachment cases

The Supreme Court has dealt a blow to former Deputy President Rigathi Gachagua after dismissing his application to suspend over 40 High Court cases challenging his impeachment. [File, Standard]

The Supreme Court has dealt a blow to former Deputy President Rigathi Gachagua after dismissing his application to suspend over 40 High Court cases challenging his impeachment.

In a ruling delivered Friday, a five-judge bench led by Chief Justice Martha Koome dismissed two applications filed by Gachagua seeking to halt the High Court proceedings and another by the National Assembly seeking to strike out his cross-appeal.

The Apex court found it lacked jurisdiction to interfere with High Court proceedings, noting that its authority extends only to matters emanating from the Court of Appeal.

"The first omnibus application by Gachagua is dismissed. The Supreme Court can only stay proceedings before the Court of Appeal and not the High Court as prayed for," CJ Koome-led bench ruled.

The Supreme Court emphasised that the appeal by the National Assembly Challenging Court of Appeal decision on the mandate ofthe  Deputy Chief Justice to appoint a bench must be considered on its merits, noting that it is not a matter that can be summarily dismissed.

The decision means that several consolidated petitions at the High Court will proceed to a full hearing, potentially determining the legality of Gachagua's impeachment process.

Gachagua had sought the suspension pending the determination of his cross-appeal, which challenges the Court of Appeal's finding that the three-judge bench hearing his case, comprising Justices Fred Ogola, Antony Mrima, and Freda Mugambi, was properly constituted and impartial.

The Supreme Court rejected Gachagua’s argument seeking to halt the High Court proceedings.

READ: Intrigues that sealed Rigathi Gachagua's impeachment

"By necessary and logical reasoning, only proceedings before the Court of Appeal can be stayed by this Court. Yet the instant application is inviting us to stay, not the proceedings in the Court of Appeal, but those before the High Court, " the five judges ruled.

The proceedings arise from what the Supreme Court termed "an extraordinary chain of constitutional events" following Gachagua's impeachment on October 17, 2024.

The Senate voted to uphold impeachment charges after the National Assembly passed the motion with 281 votes, surpassing the required two-thirds majority.

A central controversy emerged when Deputy Chief Justice Philomena Mwilu, in the Chief Justice's absence, empanelled the three-judge bench on October 18, 2024, to hear Gachagua's challenges.

The Court of Appeal subsequently ruled that the duty to constitute benches in the High Court is an exclusive preserve of the Chief Justice under the Constitution, and it is not one of those administrative duties that the Chief Justice can delegate.

Despite this finding, the appellate court upheld the bench's decision rejecting Gachagua's recusal application, finding no evidence of bias.

The Supreme Court also dismissed the National Assembly's application to strike out Gachagua's cross-appeal, which challenges the Court of Appeal's ruling on judicial bias and recusal.

Gachagua had argued that the three judges should have recused themselves due to the irregular empanelment, their conduct in accommodating urgent applications, and alleged personal relationships between one judge and a party to the proceedings.

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The Supreme Court found the cross-appeal raised legitimate constitutional questions under Article 50 on fair trial rights.

 "Although the central constitutional issue before the two courts below was the application of Articles 161, 165(4) and 259(3)(b) of the Constitution... Article 50 was applied by both the High Court and the Court of Appeal on the question of bias and recusal of the judges," Judges stated.

They rejected the National Assembly's submission that the cross-appeal was procedurally defective.

"We reject the submissions by the National Assembly that the issues raised in the cross-appeal are distinct from those in the appeal," the bench ruled.

Gachagua had also sought to have the National Assembly's main appeal struck out, arguing it was barred by the doctrine of judicial estoppel because the Assembly had previously taken an opposite position on the Deputy Chief Justice's empanelment powers.

The Supreme Court declined to summarily dismiss the appeal, noting that assessing whether the National Assembly’s position represented a departure from its earlier stance would require a detailed comparison and extensive analysis of the positions.