Gachagua's impeachment verdict: The absurd judgment pitting lawyers against Judiciary

The Kenyan High Court recently delivered a contentious judgment concerning the impeachment of former Deputy President Rigathi Gachagua. The three-judge bench upheld the impeachment as constitutionally valid, yet simultaneously found that Gachagua's fundamental right to a fair hearing had been violated during the Senate proceedings. This procedural breach led to an award of KSh 50 million in constitutional damages. The ruling has ignited a significant debate within the legal fraternity, with many lawyers and legal experts questioning the coherence and implications of a judgment that affirms a substantive outcome despite a proven violation of due process, thereby pitting the principles of procedural fairness against the finality of legislative action.

The recent High Court judgment in Kenya concerning the impeachment of former Deputy President Rigathi Gachagua has sent ripples through the nation's legal landscape, sparking intense debate and drawing criticism from prominent legal minds. In a decision delivered on June 8, 2026, a three-judge bench reportedly upheld the impeachment of Gachagua, affirming the constitutional validity of the process undertaken by Parliament. However, in a seemingly contradictory move, the same court found that Gachagua's right to a fair hearing had been violated during the Senate proceedings, awarding him KSh 50 million in damages for this infringement. This verdict has been described by some as 'absurd,' highlighting a profound tension between procedural justice and substantive outcomes in high-stakes constitutional matters.

The impeachment of a Deputy President in Kenya is a process rooted in the Constitution of Kenya, 2010, which outlines the grounds for removal from office for state officers. While Article 181 specifically addresses the removal of a county governor, and Article 145 the President, the general principles of accountability and due process apply across high offices. The process typically involves a motion initiated in the National Assembly, followed by a trial and vote in the Senate. The Constitution, under Article 47, guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. This right is further elaborated and given effect by the Fair Administrative Action Act, 2015 (No. 4 of 2015), which provides a statutory framework for judicial review of administrative decisions and outlines remedies for violations, including damages. The right to a fair hearing, enshrined in Article 50 of the Constitution, is a cornerstone of Kenya's justice system, ensuring that individuals are afforded an opportunity to present their case and respond to allegations against them. These constitutional and statutory provisions form the bedrock upon which administrative and quasi-judicial processes, such as impeachment, are to be conducted, with courts empowered to review such processes for adherence to constitutional dictates.

The High Court's judgment in the Gachagua impeachment matter presents a complex legal conundrum, particularly its dual finding that the impeachment was valid despite a fair hearing violation. Reports indicate that the court reasoned that impeachment is primarily a legislative function, and judicial intervention should not substitute Parliament's judgment on the merits of removal. Furthermore, the court reportedly emphasized the 'constitutional finality' of the impeachment process once completed, especially given the lawful appointment of a successor, arguing that reinstatement would create an untenable 'dual-incumbency' constitutional crisis. This approach suggests a judicial deference to legislative autonomy in impeachment proceedings, limiting the court's role to procedural oversight rather than substantive review of the grounds for removal.

However, the simultaneous finding of a violation of Gachagua's fair hearing rights, specifically when the Senate reportedly declined to adjourn proceedings despite his illness, and the subsequent award of KSh 50 million in damages, has drawn significant criticism. Legal experts, including former Chief Justice David Maraga and former Law Society of Kenya President Faith Odhiambo, have questioned the logical consistency of such a ruling. They argue that a process tainted by a fundamental breach of due process, such as the right to be heard, cannot legitimately produce a valid outcome. The essence of fair administrative action, as per Article 47 of the Constitution and the Fair Administrative Action Act, 2015, is not merely to provide monetary compensation for a flawed process, but to ensure that administrative actions are lawful, reasonable, and procedurally fair from inception to conclusion.

This judgment raises critical questions about the hierarchy of constitutional rights and remedies. Is the right to a fair hearing a mere procedural technicality that can be remedied by damages without affecting the substantive decision, or is it a substantive safeguard whose violation inherently invalidates the entire process? Critics contend that if constitutional violations in high-stakes proceedings can be remedied solely through monetary awards without nullifying the outcome, it may diminish the incentive for strict adherence to constitutional safeguards by legislative and administrative bodies in the future. The ruling appears to distinguish between the procedural integrity of the impeachment process and its ultimate validity, suggesting that while the former may be flawed, the latter can stand, particularly when political finality (like the appointment of a successor) has been achieved. This distinction, however, is precisely what has caused disquiet among legal practitioners, who see it as undermining the very essence of constitutionalism and the rule of law.

The High Court's judgment in the Rigathi Gachagua impeachment case presents a significant moment for Kenyan constitutional law, particularly for legal practitioners navigating the complexities of judicial review of legislative and administrative actions. While the court's decision to uphold the impeachment reinforces the principle of legislative autonomy in such matters, the concurrent finding of a fair hearing violation and the award of damages creates a precedent that demands careful consideration. Practitioners must now grapple with the implications of a remedial framework where procedural constitutional breaches may be compensated financially without necessarily invalidating the substantive outcome, especially in politically charged contexts.

This ruling underscores the ongoing tension between ensuring procedural fairness and achieving finality in constitutional processes. It calls for a deeper reflection on the coherence of Kenya's remedial jurisprudence and the extent to which courts can, or should, intervene to rectify procedural flaws without encroaching on the separation of powers. Legal professionals should closely monitor any potential appeals of this decision, as a higher court's pronouncement could provide much-needed clarity on these intricate constitutional questions. Furthermore, this case highlights the urgent need for Parliament to enact a dedicated statutory framework governing the impeachment of a Deputy President under Article 150 of the Constitution, as urged by the High Court, to minimize ambiguity and ensure robust adherence to due process in future proceedings.