The Court of Appeal has ruled that Deputy Chief Justice (DCJ) Philomena Mwilu exceeded her authority by assigning judges to hear petitions challenging the impeachment of Deputy President Rigathi Gachagua. The court held that only the Chief Justice has the constitutional mandate to constitute judicial benches.
A three-judge appellate bench composed of Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott delivered the decision, stating that DCJ Mwilu could not assign judges—even in an acting capacity—unless the Chief Justice was unavailable due to resignation, removal, or death. None of these circumstances applied to Chief Justice Martha Koome, who was simply out of the country at the time.
The case arose after Mwilu referred several petitions filed during Gachagua’s impeachment process to a bench originally constituted by CJ Koome. Gachagua’s legal team argued that Mwilu’s referral amounted to assigning judges, an act only the Chief Justice is constitutionally permitted to perform.
Though the High Court had previously ruled that Mwilu’s action was administrative and lawful, the appellate court disagreed, asserting that even if the CJ was physically absent, she could still perform her duties electronically.
The appellate judges noted Mwilu signed off as “DCJ/Ag CJ” without a constitutional basis and failed to inform the parties of Koome’s unavailability. As a result, the court directed the petitions be returned to the Chief Justice for proper bench constitution. The CJ may reassign the same judges, choose others, or even expand the bench.
However, the court rejected Gachagua’s plea to have the current bench disqualified, stating there was no evidence of bias or impropriety.
