Nairobi — The Supreme Court has dismissed former Deputy President Rigathi Gachagua's bid to halt impeachment proceedings pending before the High Court, ruling that it lacks jurisdiction to interfere with matters before a lower court in a decision reaffirming constitutional hierarchy of the judicial system.
In a unanimous decision delivered on Friday, a five-judge bench comprising Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Justices Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola held that the apex court can only issue stay orders in respect of proceedings before the Court of Appeal -- not the High Court.
"The Court cannot frog-leap the Court of Appeal to provide relief to a party before the High Court," the judges ruled, citing Article 163(4) of the Constitution and Section 23A of the Supreme Court Act.
The decision means Gachagua's impeachment dispute now returns to the three-judge High Court bench led by Justice Eric Ogola, alongside Justices Anthony Mrima and Freidah Mugambi -- the same panel he has repeatedly, and unsuccessfully, sought to block.
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Gachagua wasremoved from office in mid-October 2024 following an impeachment at the National Assembly confimed by the Senate.
His removal triggered a cascade of legal battles challenging the impeachment process, the authority of the Deputy Chief Justice to empanel High Court benches under Article 165(4) of the Constitution, and allegations of judicial bias.
Central to the dispute has been whether the Ogola-led bench was lawfully constituted to hear multiple petitions arising from his impeachment and the subsequent appointment of Prof. Kithure Kindiki as Deputy President.
'Playing to the gallery'
On October 23, 2024, the High Court dismissed -- with costs -- Gachagua's application contesting Deputy Chief Justice Mwilu's authority to empanel the bench, 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 court also rejected claims that it had convened unconventionally, noting that the Judiciary's electronic Case Tracking System allows judges to deal with urgent matters 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 bench accused the applicants of attempting to derail proceedings after securing ex parte orders under the guise of urgency, questioning why they later sought 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 court stated.
Two days later, on October 25, the same bench declined to recuse itself after Gachagua's lawyers alleged bias and conflict of interest but judges found the claims unsupported and, in some instances, factually inaccurate.
Among the assertions dismissed were allegations linking Justice Mugambi academically to Kindiki, claims regarding 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.
"The application for recusal is hereby disallowed," Justice Ogola ruled.
CoA defeat
Efforts to halt the High Court proceedings also failed 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 urgency and the overwhelming public interest in the matter while faulting the applicants for procedural lapses and warning against attempts to stall the case.
Alongside the impeachment disputes, the courts were drawn into parallel arguments over presidential immunity and jurisdiction, with the Attorney General opposing efforts to enjoin President William Ruto and arguing that challenges to Kindiki's appointment could only be mounted through a presidential election petition before the Supreme Court.
In Friday's ruling, the Supreme Court rejected Gachagua's request to summarily strike out the National Assembly's appeal, holding that issues of judicial estoppel raised substantive questions requiring detailed analysis and were unsuitable for summary dismissal.
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The court also declined to expunge documents from the supplementary record of appeal, finding that the contested materials -- including empanelment directions issued on October 18, 2024 -- were central to the dispute and had been referenced by the Court of Appeal.
Public interest
At the same time, the apex court dismissed a separate application by the National Assembly seeking to strike out Gachagua's cross-appeal, ruling that it properly raised constitutional questions on judicial bias and recusal that had been considered by both the High Court and the Court of Appeal.
In declining to award costs, the judges cited the public interest nature of the dispute.
"There shall be no orders as to costs," the bench ruled.
The decision clears the way for the High Court to proceed with hearing the consolidated impeachment petitions, marking a critical procedural milestone for Parliament's first successful impeachment of a sitting Deputy President.
The ruling also carries significant implications for Gachagua's political future, particularly his bid to overcome the Chapter Six leadership and integrity threshold ahead of the 2027 presidential election.
