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Court of AppealPartially AllowedCivil Appeal No E829 of 2024 and Civil Appeal No E022 of 2025 (Consolidated)

Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR)

Court of Appeal of Kenya
9 May 2025
DMD. K. MusingaMNMumbi NgugiFTF. Tuiyott
23,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~94 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that only the Chief Justice can pick judges for constitutional bench cases, quashing the bench that heard Gachagua's impeachment petitions.

What this practically means

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Executive summary

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This judgment of the Court of Appeal (Musinga, Ngugi and Tuiyott, JJAA) determines two consolidated appeals arising from the impeachment of the then Deputy President, HE Rigathi Gachagua. The first appeal challenged a ruling of a three-judge High Court bench (Ogola, Mrima and Mugambi, JJ) upholding the power of the Deputy Chief Justice to empanel that bench under article 165(4) of the Constitution. The second challenged the same bench's refusal to recuse itself for alleged bias. The Court held that the assignment of judges to an expanded bench under article 165(4) is an administrative function of the Chief Justice, but one constitutionally reserved to her personally: it cannot be delegated under section 5(2) of the Judicial Service Act, and the Deputy Chief Justice may exercise it only when acting as Chief Justice under section 5(4) of that Act or in other demonstrable, exceptional circumstances, the reasons for which must be communicated to the parties and the public. Finding no evidence that any such circumstances existed on 18th October 2024, the Court quashed the impugned empanelment orders and directed that the three matters be placed before the Chief Justice within 14 days to empanel a bench afresh; it declined to dictate the size or composition of that bench. On recusal, the Court endorsed the objective test: whether a fair-minded and informed observer, considering all the circumstances, would conclude there is a real possibility of bias. It held that a three-year-old wedding gift, a social relationship predating the Speaker's tenure, and a spouse's appointment by a Cabinet Secretary fell far below the threshold. It also held that a JSC complaint does not automatically require recusal, distinguishing Dari Limited. The recusal appeal was dismissed; the empanelment appeal was allowed only in part; no order as to costs was made, both being public interest matters.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Is the power to assign judges granted to the Chief Justice under article 165(4) of the Constitution a judicial or administrative function?
  2. 2.Is that power exercisable by the Deputy Chief Justice, and if so, in what circumstances?
  3. 3.In view of the answers to the two questions above, did the empanelments made by the Deputy Chief Justice on 18th October 2024 pass the constitutional test?
  4. 4.Whether the learned judges erred in declining to recuse themselves on grounds of bias, either actual or perceived

Key legal issues

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01

Nature of the Chief Justice's empanelment power under article 165(4)

Holding

The power to assign judges under article 165(4) is an administrative function of the Chief Justice as Head of the Judiciary, though constitutionally underpinned and reserved to the Chief Justice personally.

Reasoning

The court traced the evolution from the repealed Constitution, where the Chief Justice was also a High Court judge, to the current Constitution where the Chief Justice is not a High Court judge and thus cannot exercise judicial functions of that court. In assigning judges the Chief Justice implements the High Court's certification rather than exercising a judicial mind. Comparative authority from India and Ghana supports characterising empanelment as administrative.

p. 37
02

Whether and when the Deputy Chief Justice may empanel a bench

Holding

The empanelment mandate is constitutionally reserved for the Chief Justice and cannot be passed over under section 5(2) of the Judicial Service Act; the DCJ may only exercise it when acting as Chief Justice under section 5(4) or in other demonstrable and communicated exceptional circumstances.

Reasoning

Section 5(4) of the JSA confines acting-as-CJ to removal, resignation or death of the Chief Justice. The court declined to expand the list but held that even where exceptional circumstances exist, the reason why the Chief Justice did not empanel must be set out in the empanelment order and communicated to parties and the public; absence of such communication breeds suspicion and is inimical to the administration of justice.

p. 43
03

Validity of the DCJ's empanelments of 18 October 2024

Holding

The empanelments did not pass the constitutional test: none of the section 5(4) circumstances existed, no evidence showed the DCJ was acting Chief Justice, and no reason for the CJ's non-empanelment was communicated.

Reasoning

The DCJ signed as 'DCJ/Ag CJ' but there was no evidence of acting appointment or exceptional circumstances. The court rejected the respondents' arguments based on non-joinder of the CJ and DCJ and on the CJ's silence (no 'red flag'), holding that constitutional violations cannot be legitimised by acquiescence and that the bona fides of the DCJ, while not doubted, could not cure the constitutional defect.

p. 43
04

Recusal and the test for bias

Holding

The objective test applies: a fair-minded and informed observer, considering all the circumstances, must conclude there is a real possibility of bias. The appellants' allegations failed to meet it.

Reasoning

The court reviewed Commonwealth and Kenyan authority (Magill v Porter, Committee for Justice and Liberty, Jasbir Singh Rai, Kibisu, Rawal, Tunoi) and endorsed the two-fold objective element. A wedding gift from the Senate Speaker three years earlier, when he was not Speaker, and a spouse's appointment by a Cabinet Secretary over a year before were legally and temporally remote and could not ground a reasonable apprehension of bias.

p. 49
05

Whether a JSC complaint mandates recusal (Dari Limited distinguished)

Holding

The Supreme Court in Dari Limited did not establish that judges must recuse themselves merely because a complaint has been lodged with the JSC.

Reasoning

The court reviewed the Dari decision and concluded the Supreme Court recused itself on the particular facts, stressing such decisions should be taken sparingly and on a case-by-case basis. The establishment of a per se rule of automatic recusal on the filing of a JSC complaint was not part of the ratio, and the issue was therefore irrelevant to the present matter.

p. 53

Legal principles established

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  • The function of assigning judges to an expanded bench under article 165(4) of the Constitution is administrative, not judicial, but it is a constitutionally reserved mandate of the Chief Justice and is not delegable under section 5(2) of the Judicial Service Act.
  • The Deputy Chief Justice may empanel a bench under article 165(4) only in exceptional circumstances (removal, resignation or death of the Chief Justice under section 5(4) JSA, or other demonstrable exceptional circumstances), and the reason must be communicated to the parties and the public in the empanelment order.
  • The objective test governs recusal: whether a fair-minded and informed observer, having considered all the circumstances, would conclude there is a real possibility of bias; mere social or professional associations, the passage of time, and spouses' lawful careers do not meet the threshold.
  • A complaint lodged with the Judicial Service Commission does not automatically oblige a judge to recuse himself or herself; recusal applications must be assessed case by case against the established test.

Court orders

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  1. 1.Appeal No E022 of 2025 (recusal appeal) is dismissed
  2. 2.Appeal No E829 of 2024 is allowed only to the extent that the orders of the Deputy Chief Justice dated 18th October 2024 assigning Kerugoya High Court Petition No E013 of 2024, Kerugoya High Court Petition No E015 of 2024 and Nairobi High Court Petition No E565 of 2024 to Honourable Justices Eric Ogolla, Anthony Mrima and Lady Justice Dr Freda Mugambi are quashed
  3. 3.The three matters shall, in any event not later than 14 days from the date of the judgment, be placed before the Honourable the Chief Justice for her to empanel a bench under article 165(4) of the Constitution to hear the matters
  4. 4.No order as to costs, both appeals being public interest matters

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DM
majority

Wrote the judgment

MN
majority

Wrote the judgment

FT
majority

Wrote the judgment

On appeal from
High Court of Kenya (three-judge bench of Ogola, Mrima & Dr Mugambi, JJ)
Nairobi High Court Constitutional Petition No E565 of 2024 consolidated with Kerugoya Constitutional Petitions Nos E013, E014, E015 of 2024 and Petitions E550, E570 & E572 of 2024
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court (leave to appeal granted by the High Court); Constitution articles 165(4) and 161(2) in issue
Consolidated with
Civil Appeal No E022 of 2025

Relief refused

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Prayer for the Court to order the Chief Justice to empanel an expanded bench of five judges excluding the three named judges

The discretion to empanel a bench, including its size and composition, is solely the Chief Justice's under article 165(4)

p. 55

Recusal of the three-judge bench (appeal E022 of 2025)

Allegations of bias based on social relationships, a wedding gift, and a spouse's appointment fell far below the objective threshold

Costs

Considering that both appeals are public interest matters, we make no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

1. Appeal No E022 of 2025 is hereby dismissed. 2. Appeal No E829 of 2025 is hereby allowed, only to the extent that we do hereby quash the orders of the Deputy Chief Justice dated 18th October 2024
p. 55Disposition - dismissal of recusal appeal and partial allowance of empanelment appeal
The three matters shall immediately, in any event not later than 14 days from the date hereof be placed before the Honourable the Chief Justice for her Ladyship to empanel a bench under article 165(4) of the Constitution to hear the matters.
p. 55Final order remitting empanelment to the Chief Justice
Considering that both appeals are public interest matters, we make no order as to costs.
p. 55Costs order
the Deputy Chief Justice can only exercise the extra-ordinary constitutional administrative function of article 165(4) in the exceptional circumstances we have set out, and the existence of those circumstances must be demonstrable and communicated, not just to parties in the dispute, but the public at large.
p. 42Conditions for DCJ empanelment
The test is objective: whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there exists a real possibility of bias.
p. 49Test for recusal
we find and hold that there was no evidence that the Deputy Chief Justice was the acting Chief Justice, or that there existed exceptional circumstances that permitted the Deputy Chief Justice to exercise the mandate constitutionally reserved for the Chief Justice by article 165(4) of the Constitution.
p. 43Invalidity of the DCJ's empanelment

Issues in the judgment

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minor

The judgment's disposition refers to 'Appeal No E829 of 2025' whereas the appeal as defined throughout is Civil Appeal No E829 of 2024 - an apparent internal misnumbering.

minor

The judgment refers to reviewing directions issued on 'Saturday, 19th October 2025' when the events and the directions quoted elsewhere in the judgment are dated 19th October 2024.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR)", Case Analysis (2025). Civil Appeal No E829 of 2024 and Civil Appeal No E022 of 2025 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/790/eng@2025-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.