Impeached Deputy President Rigathi Gachagua has suffered another setback after the High Court upheld Deputy Chief Justice Philomena Mwilu's decision to select a three-judge bench to preside over his impeachment proceedings.

The court on Wednesday ruled that DCJ Mwilu’s function as the assistant to Chief Justice Martha Koome was administrative.

The three-judge bench consisting of Freda Mugambi, Eric Ogola and Antony Mrima said the Constitution had clearly set out the roles of the DCJ which included substituting the CJ where applicable.

“We find that there was a deliberate scheme by DCJ to deputize CJ in the Supreme Court but not JSC. DCJ can assign judges whenever she’s discharging administrative issues and especially when the CJ has not raised objections,” ruled Justice Mrima.

Gachagua’s lawyers had argued that the bench can only be constituted by the Chief Justice, a position objected to by the respondents’ lawyers.

Regarding the decision on whether the bench sat during odd hours and without the presence of parties to the case, the court dismissed the application saying that the hearing was within its jurisdiction.

“It is not unusual for the court to issue directions outside the normal working hours. Freda: Court can issue directions without the attendance of parties (ex-parties),” said Justice Freda.