Former Deputy President Rigathi Gachagua has appealed a High Court ruling that upheld his impeachment, arguing that the process violated his constitutional rights and should have been declared invalid.
In court papers filed before the Court of Appeal, Gachagua challenges the findings of a three-judge bench comprising Justices Eric Ogola, Antony Mrima and Fredah Gathiru Mugambi, which upheld the Senate’s decision to remove him from office.
He disputes the judges’ interpretation of Article 145 of the Constitution, which sets out the procedure for the removal of a Deputy President.
He argues that although the High Court found the investigatory stage of impeachment mandatory, it wrongly concluded that the Senate’s resolution was final.
Gachagua says constitutional rights cannot be defeated by procedural timelines or political considerations.
“No act in violation of the Constitution is outside the reach of the Courts,” he says in his appeal.
He has also challenged the conduct of public participation during the impeachment process, arguing that both the National Assembly and Senate failed to give Kenyans a meaningful opportunity to participate.
Gachagua cites a Supreme Court decision in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health and Others, which held that public participation should meet both qualitative and quantitative standards.
He argues that National Assembly Standing Order 64(2), which sets timelines for the impeachment process, made it difficult to ensure adequate public participation and a fair hearing.
The former Deputy President has also challenged the approval of Prof Kithure Kindiki as Deputy President.
He argues that the High Court was wrong to find that public participation was not constitutionally required before Kindiki’s nomination and approval under Article 149(1).
Another key issue in the appeal concerns the judgment itself. Gachagua claims that four additional paragraphs were read out when the High Court delivered its decision in open court but were later omitted from the written judgment.
He says the passages were read immediately after paragraphs 484, 488, 503 and 508 and that their omission deprived him of reasoning that formed part of the judgment.
Gachagua argues that the alleged changes amounted to an improper alteration of the decision after it had been delivered.
The former Deputy President is also challenging the Sh50 million awarded to him as constitutional damages, saying the amount was inadequate because the court did not declare his impeachment unconstitutional.
He wants the Court of Appeal to declare the Senate resolution of October 17, 2024, which removed him from office, “unconstitutional, null and void”.
He is also seeking an order directing the High Court Registrar to correct the record by including the allegedly omitted portions of the judgment, as well as costs of the appeal.