The Court of Appeal (CoA) has issued clarifications aimed at dispelling deliberate distortions surrounding its recent judgment in the matter involving Deputy President Rigathi Gachagua’s challenge to judicial processes in Kerugoya Petition No. 13 of 2024.
Contrary to widespread misinterpretation, Gachagua did not appeal against the ruling by the 3-Judge Bench that lifted an earlier ex parte order from the Kerugoya High Court which had temporarily halted the swearing-in of Deputy President Prof. Kithure Kindiki. Instead, his appeal challenged a Nairobi High Court decision that had dismissed his contention that Deputy Chief Justice (DCJ) Philomena Mwilu acted unconstitutionally in appointing the 3-Judge panel.
Key Findings by the Court of Appeal
In its detailed ruling, the CoA affirmed that the administrative function of empaneling judges is indeed within the remit of the DCJ in the absence of the Chief Justice (CJ). However, it emphasized that such a decision must be accompanied by a clear explanation outlining the reasons the CJ was unable to undertake the responsibility.
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“We do not doubt the bona fides of the Deputy Chief Justice in constituting the benches,” the Court stated in paragraph 158, “but we have discussed why it is critical to communicate to the public the reasons why the Chief Justice did not exercise that administrative mandate of empanelment.”
Finding no evidence of such a communication, the Court quashed the empanelment of the 3-Judge Bench and directed the Chief Justice to reconstitute it.
No Political Vindication for Gachagua
Significantly, the Court dismissed the remaining elements of Gachagua’s appeal. It ruled out any suggestion of judicial bias in the High Court and stated that impeachment matters remain within the realm of political processes, not the judiciary.
In its criticism of how the case was framed, the Court remarked that it is not the judiciary’s responsibility to “repair pleadings or imagine what litigants hoped to achieve by moving the court as they did.”
Legal and Political Implications
The CoA’s decision does not reinstate Gachagua to office, nor does it invalidate the ruling by the 3-Judge Bench lifting the stay against Prof. Kindiki’s swearing-in. The appeal’s only tangible outcome was a procedural correction regarding how and when the DCJ may appoint judges to a Bench in the absence of the CJ.
Further, the Court warned that any attempt to seek a review of the Nairobi High Court’s ruling based on its judgment would amount to a “waste of judicial time” and would be “of dubious legality.” The CoA did not find the DCJ lacked authority—only that evidence of her rationale was not provided, a gap that could still be remedied post facto.
Conclusion
While the ruling addressed a technical lapse in judicial administration, it offered no substantive relief to Gachagua. The CoA’s directive focused squarely on strengthening institutional transparency, not adjudicating political claims. The judgment underscores the judiciary’s stance that constitutional processes must not be co-opted for political theatrics or misrepresentation.
