Gachagua Moves To Block Supreme Court Appeal Over Impeachment Bench Dispute

Former Deputy President Rigathi Gachagua has moved to the Supreme Court to strike out an appeal concerning the empanelment of the High Court bench handling his impeachment petitions. In a preliminary objection filed on May 11, 2026, Gachagua’s legal team argued that the matter is now “moot” and should be dismissed.

The core of the dispute involves whether the Deputy Chief Justice (DCJ) had the constitutional authority to empanel a bench, or if that power belongs exclusively to the Chief Justice (CJ) under Article 165(4).

The Argument: A Dispute “Overtaken by Events”

Represented by Kamotho Njomo & Company, Gachagua contends that the controversy is no longer a “live” issue. He points to several key developments that have rendered the appeal unnecessary:

• Prior Ruling: On May 9, 2025, the Court of Appeal quashed the DCJ’s initial orders and directed the Chief Justice to properly empanel the bench.

• CJ’s Intervention: Chief Justice Martha Koome has since reconstituted the bench, appointing Justices Eric Ogolla, Anthony Mrima, and Freda Mugambi.

• Active Proceedings: All parties have already submitted to this new bench, filed their arguments, and participated in extensive hearings.

Gachagua argues that a Supreme Court intervention now would serve no practical purpose other than to disrupt ongoing proceedings.

“The question of bench composition is moot… any judgment by the apex court would amount to an advisory opinion on an abstract constitutional issue,” his submissions stated.

Constitutional Interpretation

While Gachagua wants the appeal thrown out on the grounds of being non-justiciable, he also offered an alternative defense of the Court of Appeal’s previous decision. He maintains that the power to assign judges is a judicial function, not merely an administrative one, and should remain strictly with the Chief Justice unless exceptional circumstances—such as the CJ’s death or resignation—occur.

Why This Matters

The outcome of this objection will determine if the Supreme Court will weigh in on the procedural technicalities of how the impeachment cases were set up. Gachagua asserts that the public interest is best served by maintaining the stability of the current bench rather than reopening a legal battle over its formation.

The case remains a central pillar of the legal fallout following attempts to remove Gachagua from office, with related petitions still active in both Nairobi and Kerugoya.