The High Court of Kenya upheld the impeachment of former Deputy President Rigathi Gachagua, ruling that his removal from office remains final and self-executing.
However, in a major twist, a three-judge bench awarded Gachagua Sh50 million in constitutional damages, finding that his right to a fair trial was severely infringed during the Senate proceedings.
The consolidated petitions were heard by a bench comprising Justices Eric Ogola, Anthony Mrima, and Lawrence Mugambi.
The judgment brings to an end a protracted legal battle that arose after Gachagua was impeached in October 2024 following a motion tabled by Kibwezi West MP Mwengi Mutuse. However, Gachagua’s legal team indicated that the matter would move to the Court of Appeal.
The court rejected all prayers seeking to quash the Senate’s resolution to remove Gachagua from office.
The judges clarified that under Article 145(7) of the Constitution, an impeachment resolution by the Senate is a fait accompli, meaning it is automatic and self-executing.
The bench noted that Gachagua’s legal team had expressly abandoned the quest for reinstatement during the submissions.
Even if it had been pursued, the court ruled that ordering his return would be a “constitutional absurdity” because the vacancy had already been filled by Kithure Kindiki.
“The Constitution does not envisage two serving Deputy Presidents at any one time. The Court cannot undo what the Constitution itself declares to be conclusive. Reinstatement, therefore, is not a viable or appropriate relief,” the judges ruled.
The court also distinguished the removal of a Deputy President from that of a County Governor.
While a Governor’s impeachment relies on statutory finality under the County Governments Act and can be stayed by courts, the removal of a President or Deputy President is governed by “constitutional finality” and cannot be reversed by judicial fiat.
Sh50 Million Awarded for Fair Trial Breach
Despite validating the impeachment, the High Court issued a stern declaration that the Senate violated Gachagua’s fair trial rights under Article 47 and 50 when it declined to grant him an adjournment despite his physical absence from the trial.
To vindicate the Constitution, restore Gachagua’s dignity, and deter future infractions in impeachment trials, the court awarded him Sh50 million in damages, to be paid by the Senate.
The judges explained that the substantial amount took into account the lapse of time and inflation, referencing a decade-old precedent (Gitobu Imanyara v. Attorney General) where the applicant was awarded Sh15 million.
Orders for Future Impeachments
The High Court also pointed out major gaps in how Parliament handled the ouster.
The bench issued an Order of Mandamus directing Parliament to urgently enact a dedicated statutory framework for the impeachment of a Deputy President under Article 150, stating that relying on the presidential framework “with necessary modifications” is insufficient for the future.
Regarding Gachagua’s retirement benefits, pension, and emoluments, the court declined to make any findings, stating that the issue was not properly addressed or pleaded by the parties.
The former Deputy President remains at liberty to pursue his retirement benefits in an appropriate legal forum.
The court ordered all parties to bear their own legal costs, citing the heavy public interest nature of the litigation.
