The Senate has moved to the Court of Appeal to challenge the High Court's finding that senators breached Rigathi Gachagua's fair-hearing rights during his impeachment trial.
The Senate is also challenging the Sh50 million constitutional damages awarded to the former Deputy President over the rights violation.
The appeal comes a month after Gachagua filed his own appeal challenging most of the High Court judgment, including its findings upholding his impeachment and Prof Kithure Kindiki’s succession, while preserving the findings on his rights violation and Sh50 million damages award.
The Senate seeks to overturn parts of the High Court findings, including those that faulted the Senators' refusal to adjourn the impeachment proceedings and imposed the damages award.
Senate Speaker Amason Kingi at the Senate.
Photo credit: File | Nation Media Group
The appeal, filed by the Senate Speaker and the Senate, targets only portions of the June 8 judgment that found Gachagua's rights under Articles 47 and 50 were infringed and ordered damages.
The Senate argues that the judges erred in finding that its decision to reject an adjournment violated Gachagua's right to a fair hearing.
It says the judges failed to properly evaluate Articles 47 and 50 and did not recognise that the Senate exercised its discretion.
The appeal says the judges also erred after finding that Mr Gachagua had been given an opportunity to be heard, then faulting senators for continuing after he failed to appear.
The Senate argues that Mr Gachagua had been given additional time at the request of his lawyers and that the House was required to conclude the impeachment expeditiously.
It further accuses the judges of "usurping the discretion" of the Senate and replacing it with their own assessment of whether an adjournment should have been granted.
The memorandum says the adjournment request was put to a vote and defeated after considering the circumstances.
Former Deputy President Rigathi Gachagua and his legal counsel Paul Muite before the Senate in Nairobi during the second day of his impeachment trial on October 17, 2024.
Photo credit: Dennis Onsongo | Nation Media Group
It also challenges the finding that Gachagua's absence was justified by illness, arguing that no evidence had been presented to the Senate at the time to substantiate the illness.
"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.
The Senate therefore asks the appellate court to reverse the finding that his fair-hearing rights were breached and remove the Sh50 million damages order.
The dispute stems from Gachagua's impeachment in October 2024 after Kibwezi West MP Mwengi Mutuse introduced a motion containing 11 allegations against him.
Kibwezi West MP Mwengi Mutuse testifies during the impeachment trial of Deputy President Rigathi Gachagua at the Senate on October 17, 2024.
Photo credit: Dennis Onsongo | Nation Media Group
The National Assembly approved the motion and transmitted it to the Senate, which upheld five charges before removing Mr Gachagua from office.
Mr Gachagua and other petitioners later challenged the process, alleging inadequate public participation, bias, unconstitutional parliamentary procedures and violations of his rights.
The court rejected most challenges and upheld the impeachment, including the nomination and approval of Prof Kindiki as Deputy President.
The judges nevertheless found a procedural breach in the Senate's handling of Mr Gachagua's defence.
They found that the Senate had agreed to an adversarial oral hearing involving witnesses, examination and cross-examination, but proceeded after Mr Gachagua fell ill before he could take the stand as his own witness.
"That disparity is the antithesis of equality of arms and is irreconcilable with the constitutional guarantees of Articles 47 and 50," the judges said.
The court noted that senators acknowledged on the floor that Gachagua was unwell, yet opposed his request for an adjournment.
It also found that the Senate had a procedural window to continue the hearing on October 19, 2024, within the constitutional period.
The judges said the rights violation did not undo the impeachment because Article 145 made the Senate's resolution final, and reversing it would create dual incumbency by having both Gachagua and Kindiki as Deputy Presidents.
"We find that HE Gachagua's rights were infringed when the Senate declined to allow an adjournment," the judgment states.
"This violation constitutes both a vindication of his rights and a recognition of the constitutional infirmity in the process but does not undo the impeachment itself," it adds.
