The High Court has awarded former Deputy President KSh50 million compensation after finding that the Senate violated his constitutional rights during the impeachment trial.
However, the three-judge bench declined to quash the impeachment, citing the “double incumbency” challenge and added that the process is such that it cannot be undone.
Justices Eric Ogola, Justice Anthony Mrima and Lady Justice Freidah Mugambi had rejected several claims by Gachagua before affirming the constitutional finality of impeachment.
However, they found that the Senate, convened as a trial chamber after the impeachment at the National Assembly, had contravened Article 50 of the Constitution when it declined Gachagua’s request for adjournment after he had been taken ill.
Among the claims dismmised include questions on jurisdiction of the court, bias on the part of the Senate and multiple challenges to insufficiency of public participation.
A three-judge bench of the High Court upheld the impeachment of Gachagua, determining that notwithstanding the violation of his Article 50 rights, the process was valid and final.
However, they still went ahead to dismiss the consolidated petitions that sought to overturn Gachagua’s removal from office, affirming that the National Assembly and the Senate acted within their constitutional mandates.
The judges held that while courts retain jurisdiction to interpret the Constitution and determine whether constitutional limits were observed during impeachment proceedings, they were unable to reverse an impeachment process which had been completed through what they described as a self-executing process.
According to the bench, removal of a deputy president by impeachment is different from that of a county governor, distinction being that the former is a “constitutional finality”, while the latter was governed by statute and therefore open to judicial intervention.
The judges argued that the Constitution did not contemplate a situation where a court could reinstate an impeached deputy president after a successor had already been lawfully appointed under Article 149(1), noting that such a move would create the untenable scenario of “double incumbency”.
Other findings that have sparked debate include the holding that Kithure Kindiki’s appointment was legal, that public participation was reasonably conducted and the rejection of allegations of bias. They stated that the process under Article 149(1) did not require public participation, further finding no conflict of interest because Kindiki had resigned as Interior Cabinet Secretary before assuming the office of DP.
