Members of Parliament have filed an appeal at the Supreme Court contesting a Court of Appeal decision that ruled Deputy Chief Justice (DCJ) Philomena Mwilu lacked authority to appoint a three-judge panel to preside over more than 40 impeachment petitions lodged by former Deputy President Rigathi Gachagua.
In their petition, the legislators contend that the appellate judges misapplied the law and wrongly interpreted constitutional clauses concerning the DCJ’s administrative mandate to assign judges for constitutional and public interest matters.
“The learned judges of the Court of Appeal made an error in law and fact by concluding that the Deputy Chief Justice has no jurisdiction to constitute a multi-judge bench in cases arising under Article 165(4) of the Constitution,” reads part of the appeal submitted by the National Assembly’s legal team.
The lawmakers assert that the appellate court’s ruling undermines the Judiciary’s autonomy and the administrative role of the Deputy Chief Justice, whose office assists the Chief Justice in judicial and managerial responsibilities.
They further argue that the Court of Appeal failed to recognize that the DCJ acted within the law and under delegated authority from the Chief Justice, who was on official assignment outside the country at the time.
“The Court neglected to consider the doctrine of continuity in judicial administration and the necessity of delegating duties within the Office of the Chief Justice,” the petition states.
The MPs now want the Supreme Court to reverse the appellate ruling and affirm that the DCJ retains administrative powers to constitute benches when the Chief Justice is absent or has delegated the function.
Meanwhile, the High Court was informed that a separate appeal has been lodged at the Court of Appeal by Kirinyaga Woman Representative Njeri Maina and MCA David Mathenge, challenging the reappointment of a three-judge bench by Chief Justice Martha Koome in her ruling delivered on July 30, 2025.
Maina and Mathenge are seeking clarification on whether two court orders issued in 2024 by Justices Mwita and Richard Mwongo,which halted the implementation of Gachagua’s Senate impeachment,remain valid.
“The orders were vacated by a bench that the Court of Appeal later ruled was unlawfully constituted. We are seeking clarification on whether those orders are still in effect,” stated lawyer Muge.
They further claim that the High Court bench failed to determine whether the interim orders remained enforceable after the appellate court’s May 9, 2025, decision declaring the initial bench appointed by DCJ Mwilu “illegally and unlawfully constituted.”
Maina and Mathenge argue that the High Court’s failure to clarify the status of the orders has effectively allowed current Deputy President Kithure Kindiki to remain in office, despite the previous stay on Gachagua’s impeachment.
Following the filing of both appeals,one by the National Assembly at the Supreme Court and another by Maina and Mathenge at the Court of Appeal,the High Court has adjourned the hearing of Gachagua’s impeachment petitions to December 16, 2025.
A three-judge bench comprising Justices Eric Ogola, Anthony Mrima, and Freda Mugambi granted the adjournment after Gachagua and 40 other petitioners applied to vacate the earlier hearing dates set for October 23 and 24, 2025.
Lawyers Swanya Victor Ogeto and John Jomo, representing Gachagua and his co-petitioners, informed the court that the Supreme Court is set to issue directions on the National Assembly’s appeal on Thursday, October 9, 2025.
“We are optimistic that the superior court may issue stay orders halting these proceedings, as the Court of Appeal has also notified parties that it will give directions on the appeal by the Kirinyaga Woman Representative and MCA Mathenge later this week,” said Jomo.
The National Assembly’s legal representatives confirmed that the appeal had been lodged at the Supreme Court but noted that no stay orders had been granted yet. They, however, opposed the petitioners’ plea to postpone the hearings.
In a brief ruling, the three-judge bench allowed the request to adjourn the proceedings scheduled for October 23, citing the need to await the outcome of the pending appeals.
“We have taken into account all submissions in light of the ongoing cases before the Court of Appeal and Supreme Court. In respect for the hierarchy of courts and good judicial order, we vacate the earlier dates fixed for highlighting submissions,October 23 and 24, 2025,” Justice Mugambi stated while delivering the directions on behalf of the bench.
The judges also directed all respondents, including the IEBC, who had not complied with earlier directions to file their responses, to do so within seven days without any extension.
“There is a pressing need for this court to manage the matter efficiently. All respondents yet to respond to the amended petition shall file their responses within seven days, with no possibility of an extension,” the bench ordered.
The court further issued strict deadlines for filing submissions, giving the petitioners 14 days after being served with responses to file their written submissions, and allowing equal time for the respondents.
“The matter will be mentioned again to confirm compliance with these directions and to assess the status of the pending appeals before the Court of Appeal and the Supreme Court,” the judges directed.
The case will now be mentioned on December 16, 2025, at 2:30 p.m., when the court is expected to review compliance and set fresh hearing dates depending on the outcome of the two appeals.