Gachagua judgement day: Ten questions that will decide his fate

The case has become a test of Parliament’s powers, judicial oversight and the constitutional safeguards for holders of public offices. The dispute traces its origins to October 4, 2024, when Kibwezi West MP Mwengi Mutuse sponsored an impeachment motion against Mr Gachagua.

The National Assembly approved the motion on October 8 before forwarding it to the Senate, which upheld five charges and voted for his removal on the night of October 17.

The following day, President William Ruto nominated Prof Kithure Kindiki as DP, and the National Assembly approved his nomination hours later.

Read: Revealed: Ruto phone call to Gachagua’s doctor

It took 13 days to table the motion for the Senate’s final vote. Mr Gachagua and 40 others took the matter to court, seeking to nullify the process.

After nearly 20 months of hearings and submissions, the judges must consider several constitutional questions.

1. Can courts review impeachment proceedings?

The first issue is whether impeachment disputes are justiciable. The Attorney-General, Parliament, Senate and Prof Kindiki said impeachment is a political process entrusted to Parliament. They urged that the court not to substitute judicial opinion for parliamentary judgment.

But petitioners said the constitution created a supervisory Judiciary with power to review exercises of public authority. They said Parliament cannot escape scrutiny just because a dispute carries political consequences.

2. Did Parliament comply with constitutional procedures?

The court must decide if the National Assembly and Senate acted within constitutional limits.

Petitioners said Parliament collapsed its investigative, prosecutorial and adjudicative functions into one process. They claimed that senators merely endorsed the National Assembly’s conclusions without verifying that the charges were substantiated.

Respondents said both Houses complied with constitutional requirements. The judges must determine if constitutional thresholds were met.

3. Was Gachagua accorded a fair hearing?

Petitioners argued that Mr Gachagua was denied a chance after the Senate declined to adjourn proceedings despite being informed he was sick. Respondents countered that Mr Gachagua participated through his counsel and had adequate opportunity to present his defence.

The court will decide whether constitutional standards of fairness were observed.

4. Hospital admission

Medical evidence was one of the most explosive aspects of the case. Dr Daniel Gikonyo said Mr Gachagua was sick and that he admitted him to Karen Hospital on October 17, 2024 after he complained of chest pain. He said the President called to inquire about Mr Gachaguas condition.

For the petitioners, the evidence demonstrated that top state actors knew Mr Gachagua was hospitalised during impeachment.

The Senate and Prof Kindiki saw “inconsistencies” in the records and the timing of the affidavit. Prof Kindiki’s lawyers suggested Mr Gachagua was not genuinely incapacitated. Judges will determine the weight and credibility of the medical evidence.

5. Was there adequate public participation?

Petitioners said the National Assembly reached only about 200,000 people during public participation, or roughly 0.4 per cent of Kenya’s estimated population.

They also argued that the Senate could not rely on public participation conducted by the National Assembly, saying each House has separate responsibilities requiring independent public involvement.

The judges will determine if public participation was meaningful, inclusive and constitutionally compliant.

6. Did Parliament use the correct impeachment procedure?

Another issue is the process used to remove a DP. Petitioners said Parliament improperly relied on presidential impeachment procedures without modification. They pointed to Article 145 and wanted to know if appropriate Standing Orders existed.

For the respondents, the process complied with the constitutional provisions governing the removal of a DP. The court will tell if procedural defects rendered the impeachment invalid.

7. Can courts examine the merits of impeachment charges?

The petitioners said courts can review allegations supporting impeachment. Lawyers questioned Parliament’s findings on the accusation of hate speech, saying the National Cohesion and Integration Commission had neither summoned nor sanctioned Mr Gachagua.

Respondents argued courts should not re-evaluate factual findings made by Parliament. The court will rule on how far judicial oversight extends.

8. Was Prof Kindiki’s appointment constitutional?

A petitioner challenged the legality of Prof Kindiki’s elevation as DP, saying the nomination, appointment and swearing-in were illegal. For the petitioners, if the impeachment is invalidated, judges must consider the legal status of Prof Kindiki’s appointment.

Petitioners said an unconstitutional impeachment cannot produce a valid succession. They questioned the level of public participation in his approval.

Respondents maintained that Prof Kindiki assumed office through constitutional procedures approved by Parliament.
The court must determine if his appointment survives any finding against the impeachment.

9. Is Gachagua entitled to damages?

Mr Gachagua is seeking damages and compensation covering the remaining years he would have served as DP. Petitioners argued that compensation should follow when constitutional rights are breached.

Prof Kindiki opposed the claim. His lawyers said if the impeachment is nullified, Mr Gachagua would legally be deemed never to have left office.

Read: How Gachagua ouster ruling could shape 2027 elections

They said future earnings cannot be awarded where removal itself is treated as nonexistent. The court must determine whether damages are available and, if so, their scope.

10. What happens after the judgment?

The final issue concerns the practical consequences of the court’s decision. Prof Kindiki’s lawyers warned that overturning the impeachment could lead to a constitutional crisis and potentially reinstate Mr Gachagua’s term as Deputy President.

However, petitioners dismissed these concerns as speculative, arguing that courts cannot avoid enforcing the Constitution because of potential political ramifications.

The court is expected to determine the effect of its orders and how any breaches of the Constitution should be remedied.

Therefore, Monday’s judgment will do far more than decide Rigathi Gachagua’s political future.

It will also define the limits of parliamentary power and clarify the role of the judiciary in political disputes, establishing the constitutional rules that will govern the removal of senior state officers for years to come.

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