Thirty-two petitioners in the case against the impeachment of former Deputy President Rigathi Gachagua are seeking to block three judges from hearing the suit even as another group wants him reinstated to office.
The 32 petitioners have launched a fresh bid for recusal of justices Eric Ogolla, Anthony Mrima and Fridah Mugambi from the case citing bias.
Presiding Judge Erick Ogolla (centre) confers with Justices Freda Mugambi and Anthony Mrima at the Milimani Law Courts in Nairobi on Wednesday, October 23, 2024.
Photo credit: Nation Media Group
Another group of five co-petitioners is pushing for the reinstatement of Mr Gachagua based on the order issued on October 18, 2024, by the High Court in Kerugoya suspending the Senate’s resolution to impeach him, and which had also blocked the appointment of his replacement.
Referring to the recent verdict of the Court of Appeal that the Kerugoya court order was set aside by an improperly assigned bench of judges, the group says this means the order is still in force and Mr Gachagua ought to be in office.
Should the argument sail through, the country is staring at a legal crisis of having two Deputy Presidents—Mr Gachagua and his replacement Prof Kithure Kindiki —a scenario that is not contemplated in the Constitution.
The order suspending implementation of the Senate’s decision to impeach Mr Gachagua was issued by Justice Mwongo and lifted by the three-judge bench that was assigned the case by Deputy Chief Justice Philomena Mwilu.
“The Court of Appeal quashed the empanellment orders of the Deputy Chief Justice, rendering all resulting proceedings, including the lifting of Justice Mwongo’s orders and the swearing in of Prof Kindiki void ab initio (from the beginning),” says lawyer Stanley Matiba for the petitioners.
However, Mr Gachagua’s lawyers last week informed the court that he was no longer interested in an order for reinstatement. They said he wants the impeachment quashed and compensation, including salaries and benefits for the part of the term he would not get to complete.
But Mr David Mathenge (Baragwi ward representative in Kirinyaga County), Mr Peter Gichobi, Ms Grace Muthoni, Mr Clement Muchiri and Mr Edwin Munene believe the decision to return to office or not is beyond Mr Gachagua. They say his reinstatement is in the interest of protecting the sanctity of court orders and the preservation of the rule of law.
Deputy President Kithure Kindiki addressing congregants at Riiji Catholic Church in Meru on July 11, 2025.
Photo credit: DPPS
“Despite the judgment of the Court of Appeal, Prof Kindiki continues to act as Deputy President and perform the functions of the Office of Deputy President in direct contravention of subsisting court orders and despite the legal invalidity of the process through which he assumed office,” says Mr Matiba. He has applied for urgent orders compelling Prof Kindiki to “immediately cease acting and holding out as Deputy President” pending determination of the case.
He adds: “The continued occupation of that office by Prof Kindiki undermines the authority of the judiciary, contravenes the Constitution, and erodes public confidence in the rule of law and fidelity to the judicial process.”
The fresh twists emerged after the court reconvened to reorganise the hearing of the consolidated petitions after Chief Justice Martha Koome regularised the empanelling of the bench.
Former Deputy President Rigathi Gachagua at the Serena Hotel, Nairobi, on April 11, 2025.
Photo credit: Francis Nderitu | Nation Media Group
Mr Joseph Enock Aura, like the 32 other petitioners, also wants the three judges to disqualify themselves from the case and the files be forwarded to the Chief Justice for appointment of another bench comprising at least five judges, excluding the three.
“In allowing the swearing-in of Prof Kindiki as Kenya’s Deputy President unconstitutionally, justices Ogolla, Mrima and Mugambi stand tainted and irredeemably biased as the said judges cannot shift their hitherto expressed position on this issue,” says Mr Aura through lawyer Harrison Kinyanjui.
Asking for an expanded bench of at least five judges, he argues that the cases raise novel issues, such as Prof Kindiki’s appointment without parliamentary vetting and allegations that he never resigned as Cabinet Secretary for Interior.
