Former Deputy President Rigathi Gachagua is set to find out on Friday, January 30, 2026, whether the Supreme Court will uphold or overturn questions around the constitutionality of Deputy Chief Justice Philomena Mwilu’s role in his impeachment process.
The matter hinges on whether Mwilu had the legal authority to appoint a High Court panel that handled petitions challenging his removal from office.
The controversy began when Mwilu assigned a three-judge bench to hear cases aimed at lifting interim orders that had temporarily blocked Gachagua’s ouster in November 2024, enabling Prof Kithure Kindiki to take office as his successor.
The Court of Appeal later ruled that only the Chief Justice can constitutionally empanel judges, except in very limited circumstances, effectively declaring Mwilu’s appointment unlawful.
Following the decision, the National Assembly approached the Supreme Court, requesting that the ruling be overturned and Mwilu’s actions validated. Gachagua, in response, filed a cross-appeal, urging the court to dismiss Parliament’s petition entirely.
He argues that the legislature is acting inconsistently by challenging the Deputy Chief Justice after previously benefiting from her decisions.
“Parties are bound by their pleadings. The doctrine of judicial estoppel bars parties from asserting contradictory positions to suit. Therefore, the National Assembly cannot now challenge the Deputy Chief Justice’s authority under Article 165(4) of the Constitution after previously benefiting from her actions,” said Gachagua’s lawyers Dudley Ochiel and Kamotho Njomo.
Gachagua’s legal team contends that allowing Parliament to reverse its stance would weaken public confidence in the judiciary and compromise the integrity of courts. They also accuse the National Assembly of attempting to reinterpret the Constitution to suit its convenience.
In addition to seeking dismissal, Gachagua has asked the Supreme Court to pause ongoing High Court proceedings until the cross-appeal on the bench’s legality is resolved.
He claims the bench, which included Justices Eric Ogolla, Anthony Mrima, and Fredah Mugambi, lacked jurisdiction because Mwilu’s appointment was unconstitutional.
He further criticises the Court of Appeal for not ordering the formation of a new bench despite acknowledging that Mwilu exceeded her authority, noting that judicial practice requires fresh assignments when jurisdiction is questioned.
Gachagua has also requested the removal of documents submitted by Parliament, arguing they were added without proper authorisation to unfairly strengthen the legislature’s case.
The National Assembly, however, insists the appellate court misread the Constitution. Parliament argues that the Deputy Chief Justice can empanel judges while acting for the Chief Justice and that there is no requirement to prove the Chief Justice is unavailable due to illness or incapacity.
Its lawyers contend the Court of Appeal wrongly applied a standard of “electronic unavailability,” stressing that judicial administration must continue uninterrupted.
The case has attracted nationwide attention as it touches on key issues of impeachment procedures, separation of powers, and consistency in constitutional litigation. The Supreme Court’s ruling on Friday is expected to provide definitive guidance on the sc
