A legal dispute over whether impeached officials can contest for elective public offices while challenging their removal in court has taken a new turn after Attorney-General Dorcas Oduor left the key question unanswered, deepening the constitutional uncertainty before the Supreme Court.
Ms Oduor instead advised the Supreme Court not to proceed with an advisory opinion application that is seeking guidance on eligibility of officials removed from office. She said existing court decisions have substantially settled impeachment consequences.
Her opinion does not separately determine whether an appeal or judicial review challenging an impeachment suspends those consequences.
Lawyers for the applicant, Meru County Assembly Speaker Ayub Bundi, says the AG failed to answer eight specific questions the Supreme Court had directed her to address, including “whether a pending appeal or judicial review against removal from office can suspend the constitutional consequences of impeachment and affect an official’s eligibility to contest elections”.
Attorney-General Dorcas Oduor.
Photo credit: Billy Ogada | Nation Media Group
“Upon review, it is apparent that the opinion furnished does not address or answer any of those issues,” the lawyers said in their response.
They requested the AG to “comply with the Supreme Court's direction by providing a legal opinion that specifically addresses and answers each of the questions set out in the Reference”.
The dispute has direct relevance to former Deputy President Rigathi Gachagua and former Meru Governor Kawira Mwangaza, both removed from office through impeachment and involved in litigation arising from their ousters.
Mr Gachagua was impeached in October 2024; the High Court dismissed his challenge in June 2026. He has since lodged an appeal at the Court of Appeal where the legality and constitutional implications of the impeachment remain the subject of appellate determination.
He is the Democratic Citizens Party (DCP) leader and has since declared his intention to vie for the Presidency in 2027.
Then Deputy President Rigathi Gachagua during his impeachment hearing at the Senate in Nairobi on Wednesday, October 16, 2024.
Photo credit: Dennis Onsongo | Nation Media Group
Ms Mwangaza was removed in August 2024 after the Meru County Assembly approved impeachment and the Senate upheld it; the High Court dismissed her challenge in March 2025 and affirmed the removal.
She filed an appeal seeking to overturn the High Court's judgment and to challenge the legality of the Impeachment process. Ms Mwangaza leads Umoja na Maendeleo Party with her eyes on recapturing the gubernatorial seat.
Other elected leaders removed through impeachment include former Governors Mike Sonko (Nairobi) and Ferdinand Waititu (Kiambu).
Mr Sonko was removed as Nairobi governor in December 2020, and the Supreme Court dismissed his appeal in July 2022 after earlier court challenges failed, while Mr Waititu was removed as Kiambu governor in January 2020 after the Senate upheld his impeachment.
He challenged his removal in court, but the High Court dismissed his petition in February 2022; while the Court of Appeal later dismissed his application for a stay pending his appeal.
Leaders who were removed from office through impeachment, from left, former governors Kawira Mwangaza (Meru), Mike Sonko (Nairobi), Ferdinand Waititu (Kiambu) and former deputy president Rigathi Gachagua.
Photo credit: Nation
Speaker Bundi filed the Supreme Court reference in April 2026, asking it to interpret Chapter Six and Articles 99 and 193, which govern qualifications and disqualifications for elective office.
He said uncertainty remained over how integrity requirements apply to people removed from office for Chapter Six breaches through processes such as impeachment.
He specifically asked whether a court order suspending removal pending appeal or review also suspends the constitutional consequences of that removal.
The Supreme Court did not determine those questions. Instead, on July 17 it bench directed Mr Bundi to obtain the Attorney-General’s advice within 21 days before the reference could proceed.
“The applicant is directed to seek the Hon. Attorney General’s advice, and such advice is to be given within 21 days from the date of this ruling,” the court ordered.
Then-Meru Governor Kawira Mwangaza before the Senate Nairobi on Tuesday, August 20, 2024, during her impeachment hearing.
Photo credit: Dennis Onsongo | Nation Media Group
In her subsequent opinion, Attorney-General Oduor said the reference should not proceed because it is “adversarial in substance, abstract in its constitutional formulation and hypothetical in its prospective application.”
She said it raises “no novel constitutional questions warranting the invocation of the Supreme Court’s advisory jurisdiction.”
Ms Oduor relied on the Supreme Court’s 2022 decision in Mr Sonko’s case, which said impeachment is a constitutional remedy and its consequences “are grave and may include disqualifications from engaging in any elective public position or to hold a public office.”
The decision establishes that impeachment can carry disqualification from elective office, but it did not expressly determine whether a pending appeal or judicial review automatically prevents an impeached official from contesting an election.
Ms Oduor instead said the consequences of impeachment and judicial review had already received substantial treatment by superior courts, including the Supreme Court.
Former Kiambu governor Ferdinand Ndungu Waititu at the in January 29, 2020 during the hearing of his impeachment.
Photo credit: File | Nation Media Group
She said the questions mainly concern candidate eligibility, electoral clearance and the constitutional functions of the Independent Electoral and Boundaries Commission.
The Ethics and Anti-Corruption Commission was also proposed as an intervener because of its mandate concerning integrity and qualifications of candidates.
Ms Oduor further said the reference could affect identifiable people and future electoral disputes, while advisory jurisdiction should not be used for abstract guidance on possible future cases.
“This Office is of the considered opinion that the present Reference does not satisfy the constitutional threshold for the exercise of the Supreme Court's advisory jurisdiction, and by implication, this Office,” she concluded.
Then-Nairobi Governor Mike Sonko before the Senate in Nairobi on December 17, 2020, during the hearing of a motion for his impeachment.
Photo credit: Evans Habil | Nation Media Group
The lawyers’ response has created a separate dispute over whether the Attorney-General complied with the Supreme Court’s direction. They maintain that her opinion did not answer the questions she was required to address.
The Supreme Court has not yet determined the reference on its merits, leaving the question of pending appeals and electoral eligibility unresolved in the proceedings.
IEBC and EACC had sought to participate in the case, but consideration of their applications was postponed pending the Attorney-General’s advice.
The disagreement now places the Attorney-General’s opinion itself at issue before the court as parties await procedural directions.
