Former Deputy President Rigathi Gachagua has petitioned the Supreme Court to dismiss a case filed by the National Assembly challenging a Court of Appeal ruling that upheld Deputy Chief Justice (DCJ) Philomena Mwilu’s authority to constitute a judicial bench to hear petitions on his impeachment.
In court papers, Gachagua accuses Parliament of abusing the judicial process and undermining the Supreme Court’s integrity by taking contradictory positions on the DCJ’s powers under Article 165(4) of the Constitution.
His lawyers, Dudley Ochiel and Kamotho Njomo, argue that the National Assembly previously benefited from the position that the DCJ lacked such powers — a stance it now seeks to discredit.
They cite a 2021 case in which Parliament obtained stay orders halting the dissolution of the House for failing to implement the two-thirds gender rule, relying on the very argument it now challenges.
“Parties are bound by their pleadings,” the lawyers state, invoking the doctrine of judicial estoppel. “The National Assembly is barred from asserting an inconsistent position on the DCJ’s powers. This change of position constitutes a fraud on the court.”
They further accuse Parliament of “fast, loose and cynical gamesmanship” for shifting legal interpretations to suit political expediency.
The dispute stems from DCJ Mwilu’s October 2024 decision to appoint Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi to hear a case on the legality of Gachagua’s removal from office.
The High Court upheld her decision, noting that in the absence of the Chief Justice, the DCJ may perform certain administrative functions.
However, the Court of Appeal in May 2025 ruled that the bench’s appointment did not meet the constitutional threshold, finding no evidence that Mwilu was acting as Chief Justice or that exceptional circumstances justified her role.
The Supreme Court is expected to hear the matter once the judges return from vacation.