The Senate has rejected a High Court decision awarding former Deputy President Rigathi Gachagua Sh50 million over his impeachment, asking the Court of Appeal to cancel both the compensation and the finding that his right to a fair hearing was violated.
In its appeal, the Senate argues that it acted lawfully when it refused to stop the impeachment proceedings after Gachagua became unwell and sought a short break. It maintains that the former Deputy President had been given enough time and opportunity to present his case before the House proceeded to vote on his removal.
The dispute stems from Gachagua’s challenge to his impeachment proceedings, during which he argued that his constitutional rights were breached when the Senate continued with his trial despite his request for an adjournment after falling ill.
He went to court seeking several orders, including a declaration that the impeachment process was unconstitutional, his return to the office of Deputy President and payment of “constitutional damages” for the alleged violation of his rights.
The High Court found in his favour on the fair hearing issue and ordered that he be paid Sh50 million in constitutional damages.
The decision has now been challenged by the Senate, which argues that Parliament was carrying out a function assigned to it by the Constitution and that the courts should not interfere with the outcome of an impeachment process.
The Senate says it had a duty to bring the proceedings to an end once they had been started. It also disputes the argument that refusing to grant Gachagua another adjournment denied him an opportunity to defend himself.
In its memorandum of appeal, the Senate says it exercised its discretion “with respect to the request for adjournment in accordance with the law”.
It also says Gachagua had been given “a reasonable opportunity to attend and be heard, including additional time granted at the request of his advocates”.
The Senate has further accused the High Court of interfering with the authority of the House to make decisions on procedural matters during impeachment proceedings.
According to the appellants, the Senate was acting in a quasi-judicial capacity and was therefore entitled to decide whether Gachagua’s request for an adjournment should be allowed.
The Senate says the High Court should not have replaced the House’s decision with its own, particularly because no medical evidence supporting the request for an adjournment had been presented during the proceedings.
It is now asking the Court of Appeal to overturn the High Court’s finding that “the rights of the first respondent to a fair hearing under Articles 47 and 50 of the constitution were infringed by the second appellant’s declining to grant him an adjournment during the impeachment proceedings”.
The Senate is also challenging the order requiring it to pay Gachagua “constitutional damages of Sh50,000,000 against the second appellant.”
The case has drawn a wide group of parties into the appeal. Gachagua is listed as the first respondent, while 80 other respondents have also been named.
They include the Chief Justice, the Attorney General, various political parties, the Ethics and Anti-Corruption Commission and the Inspector General of the National Police Service.
The Law Society of Kenya and the Katiba Institute are among the interested parties in the case.
The Court of Appeal will now have to consider whether the High Court correctly found that Gachagua’s rights under Articles 47 and 50 had been breached.
It will also examine whether the Senate acted within its powers when it rejected his request for an adjournment and continued with the impeachment proceedings.
The appellate court will further decide whether the Sh50 million compensation ordered by the High Court should remain in place or be overturned.