Former Deputy President Rigathi Gachagua has arrived at the Milimani High Court for his impeachment case hearing, accompanied by his wife, Pastor Dorcas Rigathi, and their two sons.

The hearing is before a three-judge bench led by presiding Judge Eric Ogola, Lady Justice Fred Mugambi, and Antony Mrima.

The Court of Appeal (CoA) on May 9, 2025, directed CJ Koome to appoint a bench within 14 days to determine Gachagua’s petition challenging his removal from office.

This was after the CoA overturned Deputy Chief Justice Philomena Mwilu’s decision to appoint a three-judge bench to hear cases filed by the former deputy president.

In a judgement rendered by a three-judge bench comprising Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, the court stated that Mwilu did not have constitutional powers to form a High Court bench to determine Gachagua’s impeachment petitions.

“The discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely granted to the Chief Justice. It is the Chief Justice, and she alone, who can decide the number of judges to assign to a matter,” the judges held in a unanimous decision.

Koome’s powers to empanel bench

They also ruled that only Chief Justice Martha Koome has the power to form an empanelled bench according to the Constitution, adding that her deputy could not purport to hold her fort in her absence.

However, the CoA did not bar CJ Koome from re-appointing the three judges that had been appointed by DCJ Mwilu to hear and determine the petitions.

Additionally, they stated that the decision on the number of judges that will be on the new bench—whether three or five—to hear the matters lies with CJ Koome.

This came after the appellant judges declined to compel the CJ to appoint a five-judge bench to hear the cases, as requested by Gachagua and his allies.

The decision followed Mwilu’s appointment, on October 18, 2024, of judges Eric Ogola, Anthony Mrima, and Fredah Mugambi to hear the consolidated petitions filed by Gachagua and others to stop Kithure Kindiki from replacing him as DP.

However, Gachagua, through his lawyers led by Paul Muite, argued that Mwilu was not the substantive CJ and could not exercise powers granted to CJ Koome by the constitution.

Gachagua challenged the appointment of Judges Ogola, Mugambi, and Mrima to oversee his cases, arguing that they should not hear and determine petitions challenging his removal from office by the Senate, as they were not properly constituted.

However, on May 23, 2025, Chief Justice Martha Koome retained the same bench that her deputy, Philomena Mwilu, had previously selected to hear petitions on the impeachment of Gachagua.