41 petitioners have gone to court seeking the re-appointment of a fresh bench to hear and determine the former Deputy President Rigathi Gachagua’s cases.
In their detailed petitions, the petitioners led by Gachagua, Eddie Waiguru and Thomas Kamotho, want Justices Eric Ogola, Anthony Mrima and Lady Justice Freda Mugambi, who were recently appointed by the Chief Justice Martha Koome to hear over 30 cases challenging the removal of Gachagua disqualify themselves.
The petitioners want the three judges out of Gachagua’s impeachment cases, saying they are likely not to deliver a fair judgment, citing that they are effectively being set up for a judicial circus in which the outcome is effectively pre-determined.
Want bench disbanded
“Given that Justices Eric Ogola, Anthony Mrima and Lady Justice Freda Mugambi cannot in good conscience and in fidelity to the judicial code of conduct determine the applications for conservatory order requiring fresh hearing in a manner contrary to the Ruling of 31st October, 2025,” part of the petition read.
“We urge the Chief Justice to be pleased to review and set aside her decision communicated to the parties herein by a letter of the Deputy Registrar dated May 23, 2025, to appoint the Justices Ogola, Mrima and Mugambi to hear and determine the petitions arising from the impeachment of Gachagua, the 2nd Elected Deputy President of the Republic of Kenya,” lawyer Mutembei Marete says.
The petitioners contend that the bench appointed by the Chief Justice, comprising the same persons, cannot lawfully adjudicate over the fresh hearing of the forecited applications or the petitions, and therefore, the decision to appoint them ought to be reviewed and set aside.
Five-bench judge
They, however, want CJ Koome be pleased to appoint a five-Judge Bench to hear and determine all the matters in the dispute.
The new twist in the matter comes after the Chief Justice reappointed Justices Ogola, Mrima and Mugambi to hear the cases challenging the removal of Gachagua from office.
This is after the Court of Appeal nullified the bench that had been appointed by the Deputy Chief Justice Philomena Mwilu.
The Court of Appeal overturned Deputy Chief Justice Mwilu’s decision to appoint a three-judge bench to hear cases filed by the former Deputy President.
In the judgment rendered by a three-judge bench comprising Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, the court of appeal ruled that Mwilu lacked the constitutional powers to form a High Court bench to determine Gachagua’s impeachment petitions.
“The discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely granted to the Chief Justice. It is the Chief Justice, and she alone, who can decide the number of judges to assign to a matter,” the judges held in a unanimous decision.
