NAIROBI, Kenya, Aug 17 – Former Deputy President Rigathi Gachagua has appealed the High Court decision upholding his impeachment, arguing that the three-judge bench erred in finding that his removal from office could not be reversed despite violations of his constitutional rights.
In the appeal filed at the Court of Appeal, Gachagua says he is dissatisfied with the judgment and decree issued by Justices E.O. Ogola, A. Mrima and Dr F. Mugambi in June.
He argues that the High Court erred in law by holding that the Senate’s decision to impeach him was final and beyond judicial review, despite the same court finding that aspects of the process violated his rights to a fair hearing and fair administrative action.
Gachagua maintains that the right to a fair trial is an absolute constitutional guarantee that cannot be sacrificed on the basis of constitutional timelines or political considerations.
“No act in violation of the Constitution is outside the reach of the Courts,” he says in the court papers.
The former Deputy President is also challenging the High Court’s interpretation of Article 145 of the Constitution, which sets out the procedure for the removal of a Deputy President from office.
He argues that while the High Court correctly found that the investigatory phase of an impeachment is mandatory, it subsequently arrived at what he describes as an “absurd, impracticable, illogical or artificial conclusion” in its application of Article 145.
Gachagua has also faulted the handling of public participation by both the National Assembly and the Senate, arguing that the process failed to meet the constitutional threshold for meaningful public participation.
He cites the Supreme Court’s decision in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health and Others, arguing that public participation must be meaningful both qualitatively and quantitatively.
The former Deputy President is further challenging the constitutionality of National Assembly Standing Order 64(2), arguing that the timelines prescribed under the provision undermined meaningful public participation as well as his right to a fair hearing.
Another ground of appeal concerns the appointment of Prof Kithure Kindiki as Deputy President.
Gachagua argues that the High Court erred in finding that public participation was not constitutionally required in the nomination and approval of Kindiki under Article 149(1) of the Constitution.
A significant part of the appeal centres on an alleged discrepancy between the judgment delivered orally in open court and the written version subsequently issued.
Gachagua claims that during the live delivery of the judgment, the three judges read four additional paragraphs immediately after paragraphs 484, 488, 503 and 508. He alleges that the paragraphs were later omitted from the written judgment.
He argues that the High Court consequently “improperly modified” its judgment after delivery, contrary to its role as a superior court of record.
According to the appeal, the alleged discrepancy has deprived him of the benefit of the reasoning contained in the portions of the judgment that he says were read in open court.
Gachagua is also challenging the remedies granted by the High Court, including the KSh50 million awarded to him as constitutional damages.
He argues that the award was inadequate to vindicate the Constitution, restore his dignity and deter future violations because the court stopped short of declaring the impeachment unconstitutional, null and void.
He further faults the High Court for failing to determine whether a Deputy President removed through an unconstitutional impeachment process would be entitled to retirement benefits.
Gachagua wants the Court of Appeal to overturn the High Court decision and declare the Senate resolution of October 17, 2024, which removed him from office, “unconstitutional, null and void.”
He is also asking the appellate court to grant the remedies he sought in his Further Amended Petition dated August 13, 2025.
The former Deputy President has further asked the Court of Appeal to remit the High Court judgment for the limited purpose of correcting the record.
He wants the appellate court to direct the High Court Registrar, within 14 days, to ensure that the portions allegedly read in open court but omitted from the written judgment are inserted into the official record.
Gachagua is also seeking the costs of the appeal.
