By Japheth Imanene
In a sharp rebuke of ousted Deputy President Rigathi Gachagua’s legal strategy, the Court of Appeal last week has dismissed attempts to challenge the legitimacy of a judicial bench that overturned a controversial order blocking the swearing-in of his successor, Deputy President Prof. Kithure Kindiki. The judgment exposed the fragility of Gachagua’s arguments while underscoring his failure to address the substantive legal defeat that cost him his position.
According to critics, this is a misstep that reflects a desperate grasp at procedural technicalities rather than a coherent legally sound defence. Let us wrap the issue at hand in context. The Gachagua legal saga began earlier this year when the Kerugoya High Court issued an ex parte order temporarily halting Kindiki’s swearing-in.
This was a last-ditch effort by Gachagua to retain his DP position after the ouster. However, the Nairobi High Court swiftly set aside that order, terming it legally untenable. Gachagua then filed an appeal, not against the Nairobi Court’s substantive decision to lift the stay, but against its dismissal of his claim that Deputy Chief Justice (DCJ) Philomena Mwilu violated the Constitution by appointing the three-judge bench that heard the case.His argument hinged on the assertion that only the Chief Justice (CJ) holds the authority to empanel benches, a claim the Court of Appeal flatly rejected. In a meticulously detailed judgment, the appellate court affirmed that empaneling benches is an administrative function that the DCJ may exercise under the Judiciary’s framework.
However, it emphasised that such appointments require transparency. The DCJ must publicly explain why the CJ could not perform the duty, ensuring accountability and public confidence as provided in paragraphs 144 and 156 of the Constitution. Crucially, the court found no evidence that DCJ Mwilu provided such reasons when constituting the bench. While stressing it did “not doubt the bona fides of the Deputy Chief Justice,” the judges quashed the bench’s appointment on this procedural ground alone, directing the CJ to reconstitute a fresh panel, citing article 158 of the Constitution.
This is how the judgment delivered a blow to Gachagua’s broader strategy. The Court of Appeal explicitly dismissed Gachagua’s remaining requests for relief, including unsubstantiated allegations of judicial bias. It rebuked his claims that the Nairobi bench acted as a “proxy for the Executive,” stating there was “no evidence of bias” and reminding litigants that courts “are not arenas for political theatrics” (para 160).While Gachagua’s team may spin the quashing of the bench as a win, the judgment changes nothing for his political fate.
The Court of Appeal stressed that its decision “does not reinstate (Gachagua) to office” and declined to revisit the Nairobi Court’s substantive decision that lifted the stay on Kindiki’s swearing-in. Legal experts note that Gachagua’s failure to appeal the core issue which in this instance is the setting aside of the Kerugoya order, renders his procedural challenge moot.
“This appeal achieved nothing beyond a procedural correction,” said constitutional lawyer Mercy Mutemi. “The Court has essentially asked the Judiciary to tidy up its administrative guidelines, not to vindicate Gachagua.” Mutemi’s view is indeed as matters are! The judgment also carries a warning against further litigation.
The court cautioned that any application to review the Nairobi ruling based solely on the absence of reasons for the bench’s appointment would be a “total waste of judicial time” and of “dubious legality.” Notably, the appellate judges clarified that their judgment does not preclude the DCJ from retroactively providing reasons, meaning the CJ could swiftly reappoint a similarly constituted bench, this time with proper documentation.
The case in reference highlights Gachagua’s miscalculation in conflating political grievances with legal arguments. “Courts cannot repair poor pleadings or invent arguments litigants failed to raise,” the judgment stated and by dint of that fact exposed the weakness of Gachagua’s team in articulating a coherent path to restoring his office.
The judgment itself reaffirms the judiciary’s role as a neutral arbiter. By dismissing allegations of bias and focusing on procedural rigour, the Court of Appeal has subtly reinforced its independence. For Gachagua, the episode is a cautionary tale. Legal victories require confronting substantive issues not merely challenging procedural missteps.
His decision to sidestep the core ruling against him and unsubstantiated attacks on judges has left Gachagua clinging on a technicality that changes nothing.Technically, Gachagua’s political fallout is irreversible.
In the court of public opinion, his legal theatrics are more of a spectacle of desperation than a fight for justice. Parading sympathy mania will not hack it!
Imanene is a student of Law
