Chief Justice Martha Koome has appointed the same bench that her deputy, Philomena Mwilu, had previously selected to hear petitions on the impeachment of Rigathi Gachagua as Deputy President.
This means that Justices Eric Ogola, Anthony Mrima, and Freda Mugambi are once again handling the same matter.
In keeping with a Court of Appeal judgment that instructed her to appoint a bench to handle three consolidated matters on the impeachment of Rigathi Gachagua, Chief Justice Martha Koome has tapped Principal Judge of the High Court Eric Ogola and Justices Anthony Mrima and Freda Mugambi.
This action is not unusual in itself, except that it was done on the instruction of the Court of Appeal, which, on May 9, allowed an appeal lodged by former Deputy President Rigathi Gachagua challenging the empanelment of the same bench by the Deputy Chief Justice.
President of the Court of Appeal Daniel Musinga, along with Justices Mumbi Ngugi and Francis Tuiyott, agreed with Gachagua’s legal team that it was not within the Deputy Chief Justice’s mandate to empanel the bench, particularly in the absence of an explanation as to why Chief Justice Koome could not do so herself.
The appellate court held that, while the Judicial Service Act permits the Chief Justice to delegate duties to the Deputy Chief Justice, the function in question—empaneling a bench for matters raising substantial constitutional questions—is a constitutional responsibility.
Article 165(4) of the Constitution states that “any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.”
However, the Court of Appeal declined the appellants’ request to direct the Chief Justice to exclude the three judges from any newly constituted bench. The court ruled that only the Chief Justice has the authority to assign judges to a bench and also declined to compel her to expand the bench to five judges.
Regarding whether the judges should have recused themselves due to alleged bias or the appearance of bias, the appellate court found the arguments insufficient.
The court determined that Justice Mrima’s acceptance of a wedding gift from now Senate Speaker Amason Kingi three years before the petitions began did not amount to a conflict of interest.
Similarly, the court found that the appointment of an individual said to be Justice Ogola’s wife to the Kenya Water Towers Agency Board by Cabinet Secretary Soipan Tuya in June 2023 did not justify recusal.
