Kenyan President William Ruto is facing mounting pressure to dissolve the government, following the Court of Appeal's decision on Friday, May 9.

A trio of appellate court judges ruled that Deputy Chief Justice Philomena Mwilu erred in her empaneling of a High Court judge bench that threw away former deputy president Rigathi Gachagua's conservatory orders that had stopped his replacement.

Justice Mwilu had, on October 18, 2024, appointed Justices Eric Ogola (presiding), Anthony Mrima, and Lady Justice Freidah Mugambi to preside over the petitions brought by Gachagua and his allies against Parliament and Professor Kindiki.

However, Gachagua contested the appointments, arguing that Justice Mwilu, not being the substantive Chief Justice, lacked the constitutional authority to empanel a bench at the time.

Appellate Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott upheld the integrity of the appointed judges, rejecting Gachagua’s claims of bias. However, they ruled that only Chief Justice Martha Koome has the constitutional mandate to empanel a bench under Article 165(4) of the Constitution.

“The discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely vested in the Chief Justice. It is the Chief Justice, and she alone, who can determine the number of judges to assign to a matter,” the judges stated.

“Similarly, only the Chief Justice can decide which judges to appoint to a bench. This addresses the related request that we direct the exclusion of the three named judges (Ogola and his two colleagues) from the new bench to be constituted.”

The Court of Appeal directed Koome to appoint a new, potentially expanded, bench to hear the matter. It noted that she may, at her discretion, reappoint any or all of the previously assigned judges. The number of judges — whether three or five — is also to be determined by her.

Gachagua had also claimed the appointed judges were conflicted. He alleged that Justice Ogola’s spouse had been appointed to a state agency by President William Ruto, and that Justice Mrima had close ties to Senate Speaker Amason Kingi.

One of Gachagua’s lawyers, Ndegwa Njiru, further argued that Lady Justice Mugambi was a postgraduate student of Professor Kindiki at Moi University, suggesting a potential conflict of interest. However, it emerged that Moi University does not offer postgraduate studies in law, rendering the claim factually inaccurate.

In fact, Lady Justice Mugambi holds a Master’s degree from the University of Birmingham in the United Kingdom and a PhD from the University of Pretoria.

Despite the allegations, the appellate judges found no evidence of impropriety or conflict of interest among the three judges.

“We have not identified any impropriety in the conduct of the bench. We do not find the judges to be biased or lacking impartiality. Whether to include them in the reconstituted bench is a matter entirely within the discretion of the Chief Justice,” the judges ruled.

They concluded by directing that the petitions be placed before Chief Justice Koome within 14 days for her to empanel a bench under Article 165(4) of the Constitution to hear the matters.

The landmark ruling has brought a new lease of life in Gachagua's camp.

His allies now want the president to dissolve his administration and seek a fresh mandate from Kenyans, as, according to them, the appellate court ruling suggested an illegitimate regime in power.

Former Kakamega senator Cleophas Malala argued that Ruto's administration had lost its credibility and was hence a "shell of a government".

Seeming to divert from the merits of Gachagua's case and the Court of Appeal ruling, Malala implied that Gachagua's unceremonious exit from office rendered Ruto helpless and left him with a team that cannot help him achieve his manifesto.

"Inevitably, the current administration has irretrievably lost legitimacy. What we now have is not a government but a hollow shell; oblong in shape, directionless in ideology, and incoherent in structure. A staggering majority of Cabinet Secretaries vehemently opposed the President's 2022 campaign agenda and are now shamefully pretending to implement it without conviction or consistency," he said.

Malala, on observing that the elections management body was almost being reconstituted, called for the dissolution of the Kenya Kwanza government and for Kenyans to elect a new government.

This, according to him, would be an indication of Ruto's best interest for the country.

"Now that the process of reconstituting the Independent Electoral and Boundaries Commission (IEBC) is underway, it is my unequivocal view that the president must act in the highest interest of the Republic by dissolving the government and seek a fresh mandate from the people this time with his newly assembled, patchwork coalition of so-called "broad-based partners," he said.