Former Deputy President Rigathi Gachagua has filed a preliminary objection before the Supreme Court seeking to strike out an appeal challenging the empanelment of the High Court bench hearing impeachment-related petitions.
In submissions dated May 11, 2026, Gachagua argues that the appeal has been overtaken by events and no longer presents a live constitutional controversy, making it moot and non-justiciable.
Through lawyers Kamotho Njomo & Company, Gachagua says the dispute over whether the Deputy Chief Justice could constitutionally empanel a bench under Article 165(4) of the Constitution has effectively been resolved after Chief Justice Martha Koome reconstituted the bench following an earlier Court of Appeal decision.
According to the submissions, the Court of Appeal had, on May 9, 2025, quashed the Deputy Chief Justice’s orders assigning judges to hear the impeachment-related petitions and directed that the matter be placed before the Chief Justice for proper empanelment under the Constitution.
The Chief Justice subsequently appointed a three-judge bench comprising Justices Eric Ogolla, Anthony Mrima and Freda Mugambi.
Gachagua says all parties have since submitted to the jurisdiction of the bench, filed submissions and extensively argued the petitions before the court.
The former Deputy President argues that the Supreme Court’s intervention at this stage would serve no practical purpose and would only disrupt proceedings already substantially underway before the High Court bench.
“The question of bench composition is moot and no longer a live dispute between the parties,” the submissions state, adding that any judgment by the apex court would amount to an advisory opinion on an abstract constitutional issue.
Gachagua further contends that the public interest now lies in preserving the stability of the already constituted bench instead of reopening litigation over its formation.
However, in the alternative, he maintains that the Court of Appeal correctly held that the power to empanel judges under Article 165(4) is vested solely in the Chief Justice and may only be exercised by the Deputy Chief Justice in exceptional circumstances.
The submissions argue that the Constitution expressly assigns the function to the Chief Justice and that any exercise of the power by the Deputy Chief Justice must be justified by exceptional circumstances such as death, resignation or removal of the Chief Justice.
Gachagua also disputes the characterization of empanelment as merely an administrative function, insisting that assigning judges to hear constitutional matters is inherently a judicial function rooted in Article 159 of the Constitution.
The case stems from appeals arising from impeachment petitions filed after attempts to remove Gachagua from office, including matters pending before the High Court in Nairobi and Kerugoya.
