Court declines to stop DP Gachagua's Senate impeachment trial

A three-judge bench on Wednesday morning dismissed Deputy President Rigathi Gachagua's last-ditch attempt to stop the Senate from impeaching him.

High Court judges Judges Eric Eric Ogola, Anthony Mrima and Freda Mugambi however ruled the DP will still have the opportunity to seek remedy in court if he disagrees with the final outcome of the Senate impeachment proceedings.

The three judges said they are being called upon to anticipate the outcome of a process yet to be completed, adding that Gachagua’s application is premature and anticipatory.

The bench on Wednesday said no prejudice will be suffered by the applicant (Gachagua) if the orders are not granted at this stage.

“The (impeachment) process is a lawful constitutional process and the Senate will conduct a trial, whereupon the issues being raised before the court will be raised and determined,” the judges said in a unanimous ruling.

“Should the petitioner (Gachagua) not succeed, the petitioner will still have an opportunity to approach the court after the process.”

The bench said the issues before them were canvassed before a court of similar competency and convergent jurisdiction.

The matters were heard before Justice Chacha Mwita who on Tuesday declined to stop the impeachment as sought by Gachagua.

“It is our view that this is not one such case where intervention is automatic. The issues raised by the parties will be required to be interrogated. We therefore find that the enhancement of the Constitutional principle of separation of powers will be best served by declining the application at this point,” Ogola ruled.

Unconstitutional

Gachagua had argued that the proceedings were unconstitutional. He further argued Parliament had violated his constitutional rights and that the proceedings should be suspended, pending a hearing of his application to have them permanently terminated.

He said the impeachment exercise is riddled with irregularities and illegalities and terms the process unconstitutional for "gross violation of his rights".

Deputy President Rigathi Gachagua appearing before MPs on October 8, 2024. (Photo: National Assembly)

The DP had told the judges that the National Assembly violated his rights on fair administrative action and hearing under Article 50 (1), adding that said that if impeached, he would be unsuitable to hold a public office thereafter and urged the court to protect his rights in Article 38 of the Constitution.

However, the judges differed with him on his argument that he was going to suffer irreversible loss because the impeachment would be politically fatal.

In a unanimous ruling, the judges said no prejudice will be suffered by the applicant (Gachagua) if the orders are not granted at this stage and he will still have the opportunity to seek redress if not satisfied with the outcome of the exercise in the Senate.

Gachagua had argued that as soon as the Senate impeached him, he would cease to hold the office immediately and would be unable to proclaim it after the court process.

But Justice Ogola who delivered the bench's verdict said that Gachagua's application will still have remedy because "the assumption of the office cannot oust the court's jurisdiction. The court has unfettered jurisdiction to check on the constitutionality of the process at whatever stage".

The bench said that it finds that exercising its restraint at this stage will enhance and allow the independent institutions of government to function in their fullness except in the clearest of cases.

"It is our view that this is not one such case where intervention is automatic. The issues raised by the parties will require to be interrogated. We therefore find that the enhancement of the constitutional principle of separation of powers will be best found by declining the application at this point," the judges ruled.

Ogola said the determination to be made by the court will not be out of time as argued by Gachagua through his lawyers led by senior counsel Paul Muite and Ndegwa Njiru.

The judges said the court is still able to grant a remedy even after the process is conducted and concluded and as such, the court will not be acting in vain.

"The public interest tilt in allowing the constitutional processes to proceed unhindered," the judges said.

Lawyers had on Tuesday night made a passionate appeal to the bench to issue conservatory orders temporarily stopping the Senate from considering the National Assembly's resolution to impeach the DP.

But the pleas were strongly opposed by National Assembly's lawyer Paul Nyamondi and Speaker Moses Wetangula's lawyer Benson Milimo.

Nyamondi and Milimo had argued that the court should respect the doctrine of separation of institutional independence, meaning the court should refrain from interfering with the process ongoing at the Senate, as sought by Gachagua.

But Muite and Njiru urged the bench to consider that institutional independence can only come into play where that independent institution is acting within "the four corners of the constitution".

The DP's lawyers maintain that the impeachment proceedings are unconstitutional for failure to conduct the public participation, and failure to accord Gachagua a hearing at the right time and therefore the separation of powers cannot be sought to justify an unconstitutional process that should be stopped.