The High Court has upheld the impeachment of former Deputy President Rigathi Gachagua, bringing a major legal chapter in one of Kenya’s most consequential political battles to a close, while at the same time finding that the senate violated his constitutional right to a fair hearing.
In a judgment that carefully separated procedural unfairness from the validity of the final impeachment outcome, the court awarded Gachagua Sh50 million in constitutional damages, payable by the Senate, after finding that senators acted unlawfully when they declined to adjourn the impeachment proceedings despite being informed that he was unwell.
“Court finds that senators violated Mr. Rigathi Gachagua's constitutional right to a fair hearing by refusing to adjourn the impeachment trial despite acknowledging that he was ill and unable to complete his defence after the National Assembly had closed its case,” the court said.
However, the judges ruled that the violation, serious as it was, did not invalidate the impeachment or justify his return to office. The court held that reinstating Gachagua would create an untenable constitutional situation by effectively placing two Deputy Presidents in office at the same time, given that Prof Kithure Kindiki had already been nominated, approved and sworn in as his successor.
The judgment is a split outcome for Gachagua. On one hand, the court affirmed that his fair trial rights were breached at the senate. On the other, it rejected the central legal consequence he sought from that finding – the nullification of the impeachment process and a reversal of his removal from office.
The court’s reasoning places the ruling at the intersection of constitutional accountability, political finality and institutional restraint. It confirms that courts can scrutinize the impeachment of a Deputy President to determine whether the process complied with the constitution. At the same time, it signals that not every procedural flaw will automatically collapse a completed impeachment, especially where the constitutional order has already moved forward.
The judges found that the senate should have given greater weight to Gachagua’s health condition when his legal team sought an adjournment during the impeachment hearing. By refusing to suspend proceedings, the Senate denied him a meaningful opportunity to participate in his defence at a critical stage of the trial. That, the court held, amounted to a violation of his right to fair administrative action and fair hearing.
“The right to a fair trial does not yield to constitutional timelines or political exigency,” the court said.
But the court declined to treat that violation as fatal to the entire impeachment. Instead, it fashioned a remedy in damages, awarding the former Deputy President Sh50 million. The award is significant not only because of its amount, but also because it sends a warning to parliament that constitutional timelines, however tight, cannot be used to trample procedural fairness.
For Gachagua, however, the judgment leaves the political consequences of impeachment intact. He remains out of office, Kindiki remains Deputy President, and the senate’s decision to remove him stands.
The court also delivered a major blow to petitioners who had challenged the National Assembly’s handling of public participation before the impeachment motion was approved. The judges found that the National Assembly conducted adequate public participation and met the constitutional test of “reasonable sufficiency.”
According to the court, the constitution requires citizens to be given a genuine and meaningful opportunity to be heard. It does not demand a perfect exercise, nor does every logistical shortcoming automatically render a public participation process unconstitutional.
“Senate was under no constitutional obligation to conduct a fresh public participation exercise, and its role during impeachment is adjudicative rather than legislative. Article 145's specific framework prevails over the general provisions of Article 118," the court further said.
The judges therefore rejected claims that the public engagement process was a sham. They found that while there may have been isolated shortcomings in the manner in which the exercise was conducted, those weaknesses did not rise to the level of constitutional invalidity.
That finding strengthens parliament’s position in future impeachment proceedings, provided it can demonstrate that citizens had a reasonable opportunity to participate. It also confirms that courts will assess public participation practically, not mechanically.
The court further rejected allegations that the Speakers of the National Assembly and senate, MPs and senators acted with bias. The judges found that the claims were not backed by evidence and amounted largely to suspicion, political dissatisfaction and disagreement with the outcome of the process.
This was a key point in the ruling. In politically charged cases, allegations of bias are often central to challenges against parliamentary processes. But the court made clear that suspicion alone is not enough. Petitioners must present concrete evidence showing that decision-makers were prejudiced, conflicted or had predetermined the matter in a manner that violated constitutional standards.
The judges also addressed the legality of the standing orders used by both houses of parliament during the impeachment process. Petitioners had argued that the rules governing impeachment were unconstitutional, especially because of the tight timelines within which proceedings were conducted.
The court disagreed.
It ruled that National Assembly standing orders 64 and 65, as well as senate standing orders 75, 78, 79 and 80, are valid and consistent with the constitution.
The judges held that the seven-day impeachment timeline is not inherently unconstitutional. Any violation, they said, would arise from how parliament implements the process in a specific case, not from the standing orders themselves.
This distinction is important. It means the court did not condemn parliament’s impeachment framework. Instead, it cautioned that even valid rules must be applied in a manner that respects constitutional rights.
At the same time, the court offered parliament a pointed institutional warning. It said parliament remains at liberty to reconsider whether longer timelines would better serve public participation, deliberation and fairness in future impeachment proceedings involving offices of such constitutional gravity.
That observation may not have the force of a direct order, but it is likely to shape future debate on whether Kenya’s impeachment procedures are too compressed for cases involving the country’s highest offices.
The court also upheld the process that led to Prof Kindiki’s appointment as Deputy President. It ruled that public participation was not constitutionally required in the nomination and approval of a Deputy President under article 149(1) of the constitution.
The judges found that article 149 creates a complete and self-executing process for filling a vacancy in the office of Deputy President. Under that framework, the president nominates a person to fill the vacancy, and the National Assembly votes to approve or reject the nominee within the prescribed constitutional timelines.
The court held that parliament’s role in that process is binary – to accept or reject the nominee. It is not a legislative or policy-making process requiring fresh public participation.
This finding is a major affirmation of Kindiki’s appointment and a rejection of arguments that his approval was constitutionally defective because the public was not directly consulted.
The Independent Electoral and Boundaries Commission, IEBC, also featured in the proceedings, with the court addressing questions about whether the commission had any role in the replacement of a Deputy President.
“The constitution does not require IEBC clearance in such circumstances, and any informational input provided by the commission’s secretariat did not amount to any unlawful exercise of constitutional functions reserved for commissioners,” said the court.
The judges noted submissions that although the IEBC maintains the voter register and provides public information, it has no constitutional mandate to vet nominees for Deputy President or verify their academic and integrity credentials in a mid-term replacement process.
That finding further narrows the process under article 149 and confirms that the responsibility for the replacement of a Deputy President rests principally with the president and the National Assembly.
Politically, the ruling preserves the status quo. Gachagua remains removed from office, Kindiki remains in office, and the government avoids the destabilizing possibility of a court-ordered reversal of the succession process.
Legally, however, the judgment is more complex. It is not a clean victory for parliament. By awarding damages against the senate, the court affirmed that impeachment proceedings, even when political in nature, must comply with constitutional fairness. Parliament cannot hide behind political questions or strict timelines where fundamental rights are at stake.
The ruling offers moral and legal vindication for Gachagua on the question of fair trial rights, but denies him the political remedy of reinstatement. It gives him a legal platform to argue that he was mistreated, but it does not restore the office he lost.
The ruling is both a shield and a warning to parliament. The impeachment survived, the standing orders survived, and the public participation process was upheld. But the Senate’s refusal to adjourn proceedings has now attracted a heavy constitutional damages award.
The judgment therefore sets a precedent that future impeachments must be conducted with greater care. Speed may be constitutionally permitted, but fairness remains mandatory.
In the end, the High Court delivered a ruling that protects institutional continuity while censuring procedural excess. It declined to undo a completed impeachment, but it also refused to excuse a violation of rights simply because the matter was political.
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