The Court of Appeal has declared that the decision by Deputy Chief Justice Philomena Mwilu to appoint a three-judge bench to rule on Gachagua’s impeachment case was unconstitutional.
The court therefore directed the Chief Justice Martha Koome to empanel a new judge bench within the next 14 days.
The court ruled that the powers to empanel a judge bench were only reserved for the Chief Justice.
According to them, the reason behind DCJ Mwilu’s empanelment of the three-judge bench was not communicated to all the parties involved, a potential breach of the Constitution.
“And while we do not doubt the bona fides of the Deputy Chief Justice in constituting the benches, we have discussed why it is critical for the reasons or reasons why the Chief Justice to be communicated to the parties and the public, and that reason and those reasons be set out in the empanelment order”, the court ruled.
They further ruled that the absence of an objection from Koome could not be taken as an implicit endorsement of the DCJ’s actions.
On October 18, 2024, Justice Mwilu appointed a three-judge bench to preside over the petitions brought by Gachagua and his allies against Parliament and Professor Kindiki.
He argued that Justice Mwilu, not being the substantive Chief Justice, lacked the constitutional authority to empanel a bench at the time.
