Gachagua renews fight over Mwilu's move to name bench

Impeached Deputy President Rigathi Gachagua has appealed against a decision that found Deputy Chief Justice Philomena Mwilu acted lawfully when she constituted a three-judge bench to hear cases touching on his ouster.

Gachagua in his appeal has asked the Appellate Court to suspend the proceedings before the High Court which resume on Tuesday, October 29.

The three-judge bench consisting of Justices Eric Ogola, Anthony Mrima and Fredah Mugambi is set to hear an application by the Attorney General and National Assembly seeking to set aside orders blocking Prof Kithure Kindiki from assuming the office of the DP.

But Gachagua through Advocate John Njomo says the three-judge bench ruling finding that Mwilu can assign a bench is erroneous.

"The ruling was based on a wrong analysis of the letter and spirit of the Constitution," says Gachagua.

He argues that the Constitution only grants the Chief Justice power to empanel and assign Judges and not the Deputy Chief Justice.

On Wednesday last week, a three-judge bench in impeached Deputy President Rigathi Gachagua's case ruled that the Deputy Chief Justice is legally mandated to constitute a bench.

While reading the ruling, Justice Anthony Mrima said that the DCJ can perform duties on behalf of the chief justice.

Justice Mrima said that the constitutional finding of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform.

“It is beyond peradventure that the DCJ can assign judges under Article 165 Sub Article 4 of the constitution whenever he/she is discharging any of the constitutional functions on behalf of the Chief Justice,” Justice Mrima read the ruling.

"In this case, we do not find any fault in the DCJ assigning judges to sit in this bench more so when the CJ has not raised any red flag.”

The bench was to rule whether the DCJ is legally mandated to constitute a bench to listen to a matter.

Deputy Chief Justice had constituted a three-judge bench including Justices Anthony Mrima, Eric Ogola and Fredah Mugambi to hear impeached Gachagua’s matter.