Gachagua petitions Supreme Court to block National Assembly's bid on Mwilu ruling

Former Deputy President Rigathi Gachagua has petitioned the Supreme Court to throw out a case filed by the National Assembly challenging a Court of Appeal ruling that affirmed Deputy Chief Justice (DCJ) Philomena Mwilu’s authority to constitute a judicial bench to hear petitions on his impeachment.

In his court papers, Gachagua argues that the National Assembly is abusing the judicial process and undermining the integrity of the apex court by taking contradictory positions on the same legal question, the DCJ’s powers to assign judges and expand benches under Article 165(4) of the Constitution.

Gachagua applied a cross-appeal after Parliament escalated the dispute to the Supreme Court, seeking to overturn the appellate court’s decision delivered in May 2025.

According to his lawyers, Dudley Ochiel and Kamotho Njomo, the National Assembly had previously taken and benefited from the position that the DCJ lacked such powers. They cited a separate case in 2021 in which Parliament obtained stay orders halting the dissolution of the House for failing to implement the two-thirds gender rule, based on the very argument it now seeks to discredit.

“Parties are bound by their pleadings. The doctrine of judicial estoppel, the preclusion of inconsistent positions, bars parties from asserting different positions to suit a case. The National Assembly is barred from asserting an inconsistent position on the DCJ’s power under Article 165(4) of the Constitution,” the lawyers state.

They accuse Parliament of engaging in “fast, loose and cynical gamesmanship” with the courts, shifting its interpretation of the law whenever politically expedient.

“For five years, the National Assembly enjoyed stay orders that froze action on retired Chief Justice David Maraga’s advisory to the President to dissolve Parliament for non-compliance with the gender rule,” the lawyers note.

“For self-interest, the National Assembly plays a cynical game with the court by shifting its interpretation of the law. This change of position constitutes a fraud on the court and would undermine proceedings at the apex court.”

The case is expected to be heard once the Supreme Court judges return from vacation.

The case stems from DCJ Mwilu’s decision to appoint Justices Eric Ogolla, Anthony Mrima and Fridah Mugambi to preside over a matter assessing the legality of Gachagua’s removal from office.

The High Court upheld her decision and rejected calls for the judges to recuse themselves, affirming that in the absence of the Chief Justice, the DCJ may perform certain administrative functions to ensure continuity of judicial operations.

Gachagua, together with David Munyi Mathenge, Peter Kamotho, Grace Muthoni, Clement Muchiri, and Edwin Munene, later challenged the ruling at the Court of Appeal.

On May 9, 2025, a bench comprising Court of Appeal President Daniel Musinga and Justices Mumbi Ngugi and Fred Ochieng held that the reasons why DCJ Mwilu, rather than Chief Justice Martha Koome, empanelled the bench were not disclosed to the parties.

The appellate judges ruled that the bench appointed on October 18, 2024, did not meet the constitutional threshold, noting that the absence of an objection from the Chief Justice could not be interpreted as approval.

They found no evidence that DCJ Mwilu was serving as Acting Chief Justice or that exceptional circumstances justified her exercising a role reserved for the Chief Justice.

The Court directed Chief Justice Koome to constitute a fresh bench to hear the matter.