NAIROBI, Kenya — Former Deputy President Rigathi Gachagua has moved to the Court of Appeal in a fresh bid to overturn the High Court decision that upheld his impeachment, arguing that the process violated his constitutional rights.
Gachagua wants the appellate court to declare the Senate resolution of October 17, 2024, which removed him from office, unconstitutional, null and void.
His appeal challenges a decision by a three-judge High Court bench comprising Justices Eric Ogola, Antony Mrima and Dr Fredah Mugambi, which held that the Senate’s decision to remove him from office was final.
The former Deputy President argues that the finding should not stand because the same court had established that parts of the impeachment process violated his right to a fair hearing and fair administrative action.
Gachagua maintains that constitutional violations cannot be shielded by procedural timelines or political considerations.
“No act in violation of the Constitution is outside the reach of the Courts,” Gachagua states in his court papers.
A central issue in the appeal is the interpretation of Article 145 of the Constitution, which provides the procedure for removing a Deputy President from office.
Gachagua argues that although the High Court found the investigative stage of the impeachment process mandatory, it arrived at what he describes as an “absurd, impracticable, illogical or artificial conclusion” when applying the constitutional provision.
He is also challenging the manner in which the court dealt with alleged violations during the impeachment process, arguing that the discovery of constitutional breaches should have led to the nullification of the proceedings.
The former Deputy President has also placed public participation at the centre of his appeal, arguing that both the National Assembly and Senate failed to give Kenyans a meaningful opportunity to participate in the impeachment process.
He relies on the Supreme Court decision in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health and Others, which established that public participation must meet both qualitative and quantitative standards.
Gachagua further challenges National Assembly Standing Order 64(2), arguing that the timelines prescribed under the rule made meaningful public participation and a fair hearing practically impossible.
The appeal also challenges the process through which Prof Kithure Kindiki was nominated and approved as Deputy President following Gachagua’s removal.
Gachagua argues that the High Court erred in finding that public participation was not constitutionally required before the nomination and approval of a Deputy President under Article 149(1).
Another significant issue raised in the appeal concerns an alleged discrepancy between the judgment delivered in open court and the written judgment issued later.
Gachagua claims the judges read four additional paragraphs during the live delivery of the judgment, immediately after paragraphs 484, 488, 503 and 508.
According to him, those passages were subsequently omitted from the final written judgment.
He argues that the omission deprived him of reasoning that formed part of the judgment and amounted to an improper alteration of the court’s decision after it had been delivered.
He is asking the Court of Appeal to direct the High Court Registrar to correct the record by inserting the allegedly omitted portions.
Gachagua is also challenging the Sh50 million awarded to him as constitutional damages, arguing that the compensation did not adequately vindicate his rights.
He maintains that the award fell short because the High Court stopped short of declaring the impeachment unconstitutional.
The former Deputy President is therefore asking the Court of Appeal to declare the Senate’s October 17, 2024 resolution “unconstitutional, null and void.”
He is also seeking the correction of the court record and an order awarding him the costs of the appeal.
The case places before the Court of Appeal broader questions over the limits of parliamentary power, constitutional rights, public participation and the extent to which courts can review the removal of a Deputy President from office.
