Former Deputy President Rigathi Gachagua has moved to the Court of Appeal to challenge a High Court judgment that upheld his impeachment, setting the stage for a fresh constitutional battle over one of the most consequential political disputes.
Mr Gachagua intends to contest key parts of the judgment that validated Parliament’s decision to remove him from office in October 2024 in breach of his rights, while allowing his successor, Prof Kithure Kindiki, to remain Deputy President.
Central to the High Court’s reasoning was its conclusion that reversing Gachagua’s impeachment after Kindiki had already assumed office would create a constitutional dilemma over dual incumbency and the validity of a completed transfer of executive power.
In a notice of appeal filed days after the landmark judgment, Mr Gachagua indicates that he accepts five findings of the High Court, including its jurisdiction over the dispute.
He also accepts the court finding that Senate violated his fair hearing rights, the Sh50 million damages award, and the directive for Parliament to enact a legal framework governing the impeachment of a Deputy President.
The appeal follows a decision by a three-judge bench of Justices Eric Ogolla, Anthony Mrima and Fridah Mugambi that largely dismissed challenges lodged by Gachagua and dozens of co-petitioners against the impeachment process.
The court upheld the actions of the National Assembly and Senate, rejecting claims that the process was fatally tainted by bias, inadequate public participation, unconstitutional parliamentary procedures and flaws in the succession process that elevated Kindiki to the position of Deputy President.
Yet the judges also found that senators violated Mr Gachagua’s constitutional rights when they declined to adjourn impeachment proceedings despite medical evidence showing he was ill and unable to complete his defence.
The court ruled that the refusal to postpone the hearing breached his rights to fair administrative action and a fair hearing. It awarded him Sh50 million in constitutional damages.
“The violation of the first petitioner’s rights under Articles 47 and 50 of the Constitution does not vitiate the impeachment process,” the judges held in one of the verdict’s findings.
The judges reasoned that overturning the impeachment would create a constitutional dilemma because Prof Kindiki had already been nominated, approved by the National Assembly and sworn in as Deputy President after Gachagua’s removal.
According to the court, the Constitution does not contemplate two individuals simultaneously occupying the office of Deputy President.
The bench held that cessation of office following impeachment is automatic once the Senate upholds charges against a Deputy President and that the appropriate remedy for the rights violation was compensation rather than reinstatement.
The dispute traces its origins to October 2024, when Kibwezi West MP Mwengi Mutuse introduced an impeachment motion against Gachagua. The motion cited 11 grounds, including allegations of gross violation of the Constitution, gross misconduct, undermining government policy, incitement and corruption-related claims.
The National Assembly approved the motion and transmitted it to the Senate, which subsequently upheld five of the eleven charges.
Gachagua then filed a petition challenging nearly every stage of the process.
He argued that public participation was inadequate, that parliamentary speakers were biased, that the Senate unlawfully bypassed a special committee process, that the proceedings were rushed and that his rights were breached when senators proceeded in his absence while he was hospitalised.
Together with 40 other co-petitioners, they challenged Prof Kindiki’s nomination and approval, arguing that the process lacked public participation and that the Independent Electoral and Boundaries Commission was not properly constituted at the time.
The High Court rejected most of those arguments. It found that impeachment proceedings remain subject to judicial scrutiny but held that Parliament had substantially complied with constitutional requirements governing public participation and the removal process.
The judges further ruled that approval of a Deputy President nominee does not require public participation because Parliament exercises delegated sovereign authority on behalf of the people when considering such nominations.
In awarding Gachagua constitutional damages of Sh50 million payable by the Senate, the court said this was to vindicate the Constitution, restore the dignity of the affected party, and deter future violations.
In the notice of appeal, Mr Gachagua indicated that he accepts parts of the ruling that favoured him, including findings on jurisdiction, violations of his constitutional rights and the award of damages, but intends to challenge the remainder of the judgment before the appellate court.
The appeal now shifts the battle to the Court of Appeal, where judges will be asked to determine whether the rights violations identified by the High Court were serious enough to invalidate an impeachment that has already resulted in a completed transfer of power.
