The Senate has appealed to the Court of Appeal against a High Court finding that senators breached former Deputy President Rigathi Gachagua’s right to a fair hearing during his impeachment trial, along with the Sh50 million in constitutional damages the court ordered it to pay him.
The appeal comes a month after Gachagua filed his own challenge to the same judgment, contesting most of it, including the findings that upheld his impeachment and Professor Kithure Kindiki’s succession to the office. Gachagua preserved the two findings that favoured him: the rights violation and the damages award.
The Senate’s appeal, filed through the Speaker and the Senate itself, is narrowly targeted at the portions of the June 8 judgment that found Gachagua’s rights under Articles 47 and 50 of the Constitution had been infringed, along with the damages that followed. The memorandum asks the Court of Appeal to set aside or vary those specific orders and to award the Senate costs.
The Senate contends that the judges erred in finding that its refusal to grant an adjournment amounted to a denial of Gachagua’s right to a fair hearing. It argues that the court failed to properly evaluate Articles 47 and 50 and did not give enough weight to the fact that the decision to adjourn was one for the Senate to make, not the court.
There is also a contradiction the Senate wants the appellate judges to notice: the High Court found that Gachagua had already been given a chance to be heard, then faulted senators for proceeding after he failed to appear. The Senate points out that he had already been granted extra time at his own lawyers’ request, and that the House was constitutionally required to wrap up the impeachment proceedings without delay.
The Senate also accuses the judges of “usurping the discretion” of the House by substituting their own view on whether an adjournment should have been granted. The memorandum notes that the request was put to a vote and rejected after senators considered the circumstances.
The Senate also disputes the finding that Gachagua’s absence was justified on account of illness, arguing that no evidence was placed before the House at the material time to substantiate the claim.
“The judges erred in fact and law in finding that Gachagua’s absence was justified on account of illness, notwithstanding that no evidence was placed before the second respondent (Senate) at the material time to substantiate the alleged illness to support the request for adjournment,” the appeal reads.
- Gachagua launches fresh legal fight over impeachment ruling
- Parliament lawyers defend legality of Gachagua impeachment
- Gachagua impeachment was a parliamentary coup, court told
On this basis, the Senate is asking the appellate court to reverse the finding that Gachagua’s fair-hearing rights were breached and to set aside the Sh50 million damages order in its entirety.
In October 2024, Kibwezi West MP Mwengi Mutuse tabled a motion listing 11 allegations against Gachagua. The National Assembly passed it and sent it to the Senate, which upheld five of the charges and removed him from office. Gachagua and a group of co-petitioners then went to court, arguing the process was marred by poor public participation, bias, unconstitutional parliamentary procedure and breaches of his rights.
The High Court dismissed the majority of these challenges and upheld the impeachment, including Kindiki’s nomination and approval as Deputy President. The judges nevertheless identified a procedural breach in how the Senate handled Gachagua’s defence, finding that the House had agreed to an adversarial hearing involving witnesses, examination and cross-examination, yet proceeded after Gachagua fell ill and before he could testify on his own behalf.
“That disparity is the antithesis of equality of arms and is irreconcilable with the constitutional guarantees of Articles 47 and 50,” the judges held.
The court further noted that senators had acknowledged on the floor of the House that Gachagua was unwell, yet still declined his request for an adjournment, despite retaining a procedural window to continue the hearing on October 19, 2024, within the constitutionally prescribed period.
The judges, however, declined to nullify the impeachment itself, reasoning that Article 145 renders a Senate resolution on impeachment final, and that reversing it at this stage would result in dual incumbency, with both Gachagua and Kindiki laying claim to the office of Deputy President.
“We find that HE Gachagua’s rights were infringed when the Senate declined to allow an adjournment,” the judgment states, adding that the violation constituted “a vindication of his rights and a recognition of the constitutional infirmity in the process,” without undoing the impeachment itself.
The court awarded Sh50 million in constitutional damages under Article 23.
Both appeals remain pending hearing and determination.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
