Gachagua urges Supreme Court to dismiss appeal over impeachment bench dispute

A push by the National Assembly to overturn a Court of Appeal decision on how judges were appointed to hear impeachment-related petitions involving former Deputy President Rigathi Gachagua now faces opposition at the Supreme Court, where Gachagua says the dispute has already been resolved in practice.

In his response, Gachagua maintains that the issue surrounding the empanelment of a three-judge bench is no longer open for determination, arguing that earlier court orders and subsequent actions have already settled the question.

He points out that the Court of Appeal had previously quashed the initial bench formed by Deputy Chief Justice Philomena Mwilu and directed that Chief Justice Martha Koome take charge of constituting a fresh panel.

That directive led to the appointment of Justices Eric Ogola, Anthony Mrima and Freda Mugambi, who are currently handling the consolidated impeachment petitions.

In his submissions dated May 11, 2026, Gachagua told the court that the dispute has lost its practical meaning.

“The determination would have no impact on the lives or interests of parties,” Gachagua stated in his submissions dated May 11, 2026.

He adds that all sides have since accepted the current bench, participated in hearings, and already presented their arguments before it.

According to him, the proceedings are active and moving forward, including planned cross-examination of Dr Daniel Gikonyo regarding claims tied to Gachagua’s alleged hospitalisation during the October 2024 impeachment process.

He argues that revisiting the question of how the bench was formed would disrupt ongoing hearings and serve no useful purpose to any party involved.

“The question of bench composition is moot and no longer a live dispute between the parties,” he argues.

Gachagua also relies on earlier Supreme Court principles on mootness, stating that courts should avoid engaging in disputes that no longer carry real consequences or practical outcomes.

He insists that since the bench has already been reconstituted and hearings are in progress, there is no longer a live controversy for the Supreme Court to decide.

He further argues that maintaining the current bench serves the broader public interest by ensuring continuity in the handling of the impeachment-related petitions.

At the same time, he partially backs the Court of Appeal’s finding that the authority to appoint a bench under Article 165(4) of the Constitution rests with the Chief Justice, with limited involvement by the Deputy Chief Justice in exceptional situations.

However, he disputes the Court of Appeal’s view that the empanelment role is administrative, saying it is a constitutional responsibility that carries judicial weight and must be exercised carefully.

He cautions that allowing both offices to independently constitute benches could lead to conflicting court panels and confusion within the Judiciary.

The National Assembly had moved to challenge the Court of Appeal ruling that invalidated the earlier bench formed by Deputy Chief Justice Philomena Mwilu.

Gachagua now wants the Supreme Court to either dismiss the appeal as moot or uphold the earlier findings on their legal basis.