Nairobi — The Supreme Court is set to deliver its ruling on Friday in the impeachment case involving former Deputy President Rigathi Gachagua, a decision that could return him to a High Court bench he has fought relentlessly to block -- and lost against at every turn.
At the heart of the dispute is whether a three-judge High Court bench presided by Justice Eric Ogola was properly constituted to hear multiple petitions arising from Gachagua's impeachment in October 2024 and the subsequent appointment of Kithure Kindiki as his replacement.
A ruling by the apex court upholding the bench's legality would effectively send the matter back to Justices Ogola, Anthony Mrima and Freda Mugambi -- the same panel that rejected multiple procedural, constitutional and bias-related challenges mounted by Gachagua's legal team during the early stages of the legal contest.
Gachagua was impeached and removed from office in mid-October 2024, triggering a cascade of court battles questioning the impeachment process, the authority of Deputy Chief Justice Philomena Mwilu to empanel benches under Article 165(4) of the Constitution, and the extent of judicial intervention in impeachment disputes.
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Dismissed with costs
On October 23, the Ogola-led bench dismissed, with costs, Gachagua's application contesting Mwilu's authority to constitute it, faulting his lawyers for what it described as "playing to the gallery".
"It is therefore our finding that the constitutional function of the Chief Justice to assign benches, being an administrative function, can be performed by the Deputy Chief Justice when the Chief Justice, for good reason, is unable to perform," the judges held.
The bench also rejected claims that it had convened unconventionally to issue directions in urgent proceedings, noting that the Judiciary's electronic Case Tracking System allows for seamless handling of urgent matters, including outside routine court hours.
"There was nothing unconventional in the manner in which this bench dealt with the two applications filed under a certificate of urgency," the judges ruled.
In unusually sharp language, the court accused the applicants of attempting to derail proceedings, questioning why Gachagua's lawyers had invoked urgency to secure ex parte stay orders only to seek delays once the matter was set down for hearing.
"Such conduct is contradictory and undermines the very urgency that the applicants had initially invoked," the bench stated.
Declined recusal
Two days later, on October 25, the same bench declined to recuse itself after Gachagua's lawyers alleged bias and conflict of interest, claims the judges found to be unsupported and, in some instances, factually inaccurate.
Among the assertions dismissed were allegations linking Justice Mugambi academically to Kindiki, claims about the appointment of Justice Ogola's spouse to a state agency by President William Ruto -- contradicted by Gazette notices -- and suggestions of impropriety based on Justice Mrima's personal associations including with Senate Speaker Amason Kingi.
"The application for recusal is hereby disallowed," Justice Ogola ruled, adding that the bench had thoroughly interrogated the allegations before rejecting them.
Attempts to halt the High Court proceedings also faltered at the Court of Appeal.
On October 31, a bench led by Justice Patrick Kiage declined to grant temporary orders suspending proceedings before the Ogola-led panel, citing the urgency and immense public interest in the matter while faulting the applicants for procedural lapses and warning against efforts to stall the case.
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Alongside the impeachment disputes, the courts were also drawn into parallel arguments over presidential immunity and jurisdiction, with the Attorney General and senior counsel opposing attempts to enjoin President William Ruto in the suits and arguing that challenges to Kindiki's appointment could only be mounted as a presidential election petition before the Supreme Court.
Friday's Supreme Court ruling is expected to determine whether the Ogola-led bench was lawfully constituted -- a decision that could either cement the series of setbacks Gachagua suffered in 2024 or redraw the legal boundaries governing impeachment litigation and judicial authority in Kenya.
The ruling will also have a significant bearing on Gachagua's attempt to block a constitutional hurdle for his 2027 presidential ambitions under Chapter 6 of the Constitution on Leadership and Integrity.
