Gachagua impeachment case heads for historic decision as judges retreat

During the final day of the hearing, rights advocates challenging the impeachment mounted a fierce constitutional attack on Parliament and the Executive, urging the court to stop "politically engineered removals disguised as lawful impeachment proceedings".

In final rejoinder submissions, the 40 co-petitioners argued that allowing the Gachagua impeachment to stand would weaken constitutional safeguards, legitimise procedural shortcuts and return Kenya to the era of unchecked political power before the 2010 Constitution.

They warned that Parliament turned the former Deputy President’s removal into a “political arithmetic” exercise instead of a constitutional process. They backed Mr Gachagua's petition and his request for a declaration that the impeachment was unconstitutional and he should be awarded damages.

The submissions marked the closure of a case that has evolved into one of the country’s most consequential constitutional confrontations since the promulgation of the 2010 Constitution.

Also Read: Battle over Rigathi Gachagua hospitalisation evidence heads to Court of Appeal

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At the centre of the dispute is whether Parliament and Senate lawfully removed Mr Gachagua from office in October 2024 before President William Ruto nominated Prof Kithure Kindiki as Deputy President.

The petitioners insist the impeachment process violated constitutional standards on fair hearing, public participation, due process and separation of powers.

Lawyer Evans Ogada told the bench that courts could not decline to scrutinise impeachment proceedings merely because they were political.

“The Constitution of Kenya is transformative and diluted executive dominance in governance,” he submitted.

“All matters, including those political, are subject to judicial amenability.”

Mr Ogada attacked the Attorney General's, Senate and the National Assembly's reliance on the political question doctrine, arguing that the constitutional structure deliberately created an activist judiciary empowered to supervise all exercises of public power.

“If courts decline to decide cases that are political, courts could be abandoning their duty and power given by the Constitution,” he argued.

The lawyer maintained that impeachment is fundamentally a legal process governed by strict constitutional safeguards rather than parliamentary numbers.

“The Constitution does not allow removal on political arithmetic or pressure. This court stands as the guardian. Ensure Constitution provisions remain firm,” he submitted.

The submissions came days after Deputy President Kindiki’s lawyers warned that quashing the impeachment could create a constitutional crisis and theoretically leave Kenya with “two deputy presidents”.

But lawyer Kibe Mungai dismissed those claims and urged the judges to focus strictly on constitutional compliance.

“No constitutional crisis can be caused or will occur if the court quashes Gachagua's impeachment,” he submitted.

“The court should reject the argument made by Kindiki’s advocate and protect the Constitution.”

The petitioners also accused Parliament of improperly transplanting presidential impeachment procedures into the removal of a Deputy President without modifying the process to fit constitutional requirements.

Mr Mungai argued that neither the National Assembly nor Senate had produced standing orders specifically governing the impeachment of a Deputy President.

“They could not undertake the impeachment without a procedure,” he submitted. “The Gachagua trial was a mockery.”

Also Read: Laughter, sarcasm and sharp exchanges dominate Gachagua impeachment hearing

Lawyers Njeri Maina (Kirinyaga Woman Representative) and Andrew Muge argued that Parliament improperly combined investigative, prosecutorial and adjudicative roles during the impeachment process.

“There need to be constraints. Court must reflect on exercise of power by Parliament," they told the judges.

The petitioners repeatedly argued that courts have constitutional authority to examine not only procedures but also the merits of impeachment proceedings.

“Respondents say courts cannot examine impeachment cases. If this petition fails, I am worried as to the future of this country,”Mr Muge submitted.

The lawyers also mounted a fresh attack on Prof Kindiki’s appointment as Deputy President, arguing the process excluded ordinary Kenyans despite the office having originally been filled through a general election.

Lawyers Ndegwa Njiru, Omoke Morara and Sasha Wamae argued that the public was never involved in filling the vacancy created after Mr Gachagua’s removal.

“The people of Kenya were not involved in filling Gachagua’s position,” they submitted.

They argued that the approval process for Prof Kindiki was rushed through Parliament at night without meaningful public participation.

Also Read: Court battle deepens over Rigathi Gachagua hospitalisation evidence

The lawyers further attacked the Gazette Notice communicating the impeachment outcome, saying it wrongly cited Article 145 of the Constitution, which governs presidential impeachment rather than removal of a Deputy President.

“That was a fundamental error and Gachagua’s impeachment ought to be nullified,” they submitted.

According to the petitioners, Parliament failed to modify the presidential impeachment framework to fit the constitutional position of Deputy President.

“The impeachment undertaken by Senate was wrong and it ended wrongly,” the lawyers argued.

They also accused the Senate of failing to genuinely investigate whether the charges levelled against Mr Gachagua by the National Assembly had been substantiated before voting to remove him from office.

“Gachagua was not heard by the Senate. It was a one-sided process," submitted Mr Njiru.

The petitioners maintained that quashing the impeachment would not benefit Mr Gachagua alone but would protect constitutional governance and democratic accountability.

“Who is to benefit with these transgressions? It is the people of Kenya. This court should speak for the people of Kenya by quashing the impeachment," Mr Njiru argued.

Lawyer Martin Ole Kamwaro separately argued that Parliament exceeded its constitutional authority by effectively finding Mr Gachagua guilty of hate speech despite the National Cohesion and Integration Commission never summoning or cautioning him.

“The check of hate speech in this case is hypocrisy and selective justice,” he submitted.

Mr Kamwaro further argued that judicial restraint could not apply where constitutional violations were alleged.

“Parliamentary immunity is not a licence to breach the Constitution,” he submitted.

Mr Gachagua's lawyer senior counsel Paul Muite said the former Deputy President was also denied a fair hearing as he was impeached while undergoing treatment at Karen Hospital.

As the hearing closed, the petitioners urged the judges to treat the case as a defining constitutional moment whose consequences would extend far beyond Mr Gachagua’s political future.

“Preserve the Constitution, protect the Republic and protect the people by quashing the impeachment,” the lawyers urged.

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