Former Deputy President Rigathi Gachagua has suffered a setback after the Supreme Court declined to suspend the hearing of more than 40 High Court cases he filed challenging his impeachment.
In a ruling delivered by a five-judge bench led by Chief Justice Martha Koome, the court ordered that the High Court petitions proceed to full hearing, despite an ongoing appeal by the National Assembly contesting a Court of Appeal decision on the empanelment of judges.
The Supreme Court rejected an application by Mr. Gachagua seeking to halt the High Court proceedings, strike out the National Assembly’s appeal, and expunge certain documents from the record.
At the same time, the court dismissed a separate application by the National Assembly that sought to summarily strike out Mr. Gachagua’s cross-appeal.
The dispute arises from a series of constitutional events following Mr. Gachagua’s impeachment in October 2024.
The impeachment motion was introduced in the National Assembly by Kibwezi West MP Mwengi Mutuse and passed with the support of 281 lawmakers, exceeding the constitutional threshold.
The Senate subsequently upheld the impeachment, paving the way for the nomination and swearing-in of Professor Kithure Kindiki as Deputy President.
Following the impeachment, multiple constitutional petitions were filed in the High Court challenging various stages of the process.
The petitions raised substantial constitutional questions, leading to their certification under Article 165(4) of the Constitution and the empanelment of a three-judge bench.
A key point of contention was the decision by Deputy Chief Justice Philomena Mwilu to empanel the High Court bench while the Chief Justice was away.
Mr. Gachagua challenged the legality of that decision and later sought the recusal of the judges on grounds of alleged bias. The High Court dismissed both applications.
However, the Court of Appeal partly overturned that decision, holding that the power to empanel judges under Article 165(4) is an exclusive constitutional function of the Chief Justice, which the Deputy Chief Justice may exercise only in exceptional and clearly demonstrated circumstances.
That finding prompted the National Assembly to appeal to the Supreme Court, arguing that the Deputy Chief Justice acted lawfully.
Mr. Gachagua filed a cross-appeal, faulting the appellate court for failing to order the recusal of the High Court judges.
Before the Supreme Court, Mr. Gachagua sought a stay of the High Court proceedings pending the determination of the appeal and cross-appeal.
The court, however, held that it lacks jurisdiction to stay proceedings before the High Court, noting that its powers to grant such orders are limited to proceedings before the Court of Appeal.
The court further declined to strike out the National Assembly’s appeal, finding that it raises serious constitutional questions deserving full consideration.
It also ruled that the documents Mr. Gachagua sought to have expunged were integral to the dispute and had already been relied upon by both the High Court and the Court of Appeal.
Similarly, the Supreme Court dismissed the National Assembly’s application to strike out Mr. Gachagua’s cross-appeal, holding that it did not meet the threshold for summary dismissal.
As a result, both the appeal and the cross-appeal will proceed to a full hearing. The Supreme Court is expected to use the case to conclusively determine the scope of the Deputy Chief Justice’s powers and provide authoritative guidance on judicial empanelment under the Constitution.
