Absurd Judgement: Uproar over the impeachment verdict by the High Court

When High Court Judges Eric Ogola, Anthony Mrima and Freda Mugambi finished reading their 350-page judgment, affirming former Deputy President Rigathi Gachagua’s impeachment, but awarding him Sh50 million for violation of his right to a fair hearing opinion was dished fast and furious.

Former Chief Justice Willy Mutunga, Law Society of Kenya (LSK) presidents Nelson Havi, Eric Theuri and Faith Odhiambo, senior lawyer Ahmednasir Abdullahi, lawyers Donald Kipkorir, Peter Wanyama, Waikwa Wanyoike, Evance Ndong, and Joshua Malidzo were among dozens who expressed dissatisfaction with how the three judges settled the case.

Some claimed that the trio was justified in finding that the Senate’s decision was permanent and could not be reversed, as they were justifying their initial ruling, which set aside High Court Judge Richard Mwongo’s orders, which had kept Gachagua in office after impeachment.

Others termed the verdict as troubling, dangerous, an absurdity, but one lawyer’s comment that the judgment was a platypus caught the eye of this reporter.

Asked what he meant, the lawyer, who sought anonymity, stated a platypus is a confusing animal as it has a duck’s beak, a beaver’s tail, an otter’s feet, lays eggs, yet the females feed the young ones with milk despite not having nipples. They sweat milk.

According to the lawyer, the bench ought to have found that the impeachment was null and void after finding that Gachaga’s rights were violated. He insisted that it was even more confusing, as the same court ruled that the ex-DP could pursue the government for his pension, but in another court.

“That was a platypus judgment. Only an employee of good standing can pursue an employer for pension. They were trying to please everyone, but they messed up,” he said, adding that they had opened a Pandora's box on the constitutional solutions to violations of rights.

According to him, if the integrity of the impeachment was questionable, then the whole process was equally tainted.

Former CJ Mutunga in his response to lawyer Donald Kipkorir’s argument that the judgment was a judicial absurdity or reductio ad absurdum (reduction to absurdity), questioned if such verdicts could not be subject for removal of a judge from office.

“ I wonder whether such judgments are not subject to the provisions of Article 168 (1) (d)&(e),” paused Mutunga.

Kipkorir claimed that the three judges had raised the bar set by a notorious British judge, Norbury Dugdale, who was known for his controversial judgments consistently favouring the government but undermining human rights.

“ It’s upto the aggrieved Petitioners to move to the JSC …. Or maybe they await what the Court of Appeal says. But the judgement was meaningless! Late Nurbury Dugdale must be ashamed he has been upped!” said Kipkorir.

Kipkorir further likened the verdict to a ‘Cheptongei village tribunal judgment’ where he claimed that the victim got a goat for consolation after the tribunal ruled that his neighbour had stolen his cow.

“ We agree with you that your neighour cut your fence & stole your cow. We can see the cow in his compound. But we are afraid we can’t return the cow as he has fixed the fence where he had cut. But to compensate you, we will give you a goat!

LSK President Charles Kanjama agreed with the senior lawyer. He said it was shocking for the three judges not to declare the impeachment null and void.

“ This is the first time in my experience as a lawyer that the court has made a clear finding that the right to a fair trial was substantively violated but has failed to reverse the underlying outcome of that fair trial. The court said our hands are tied because impeachment is final; we cannot undo it. The court at that time said we can overturn the outcome of the impeachment, but today it has said once the impeachment is done, it cannot be overturned. There is a lot of inconsistency in the decision of the court,” said Kanjama.

He added that judges instead went to analyse Article 145 of the Constitution, to find that in the moment one is impeached, one cannot recover. He was of the view that, owing to their finding that Gachagua’s successor, Prof. Kithure Kindiki, had properly ascended to office, they opted to give the former DP money as a remedy.

“ The right to a fair trial is absolute,” he said, adding that the proceedings were a trial since the Senate was required to find Gachagua guilty of an offence.

His deputy, Tess Wavinya held a similar stand. She said it was a disturbing landmark.

“ That is a very troubling precedent: constitutional rights may be infringed and the violation remedied merely through an award of damages. It is difficult to reconcile a finding that a process violated a non-derogable constitutional right with a conclusion that the outcome of that very process remains valid. If the process was fundamentally unconstitutional, one would ordinarily expect the resulting decision to be similarly tainted,” said Wavinya.

 Kanjama’s predecessor, Odhiambo, held that Justices Ogola, Mrima and Mugambi had set a dangerous precedent, where the Senate and National Assembly will walk away from flawed processes, simply because the victims will be paid as a consolation.

According to her, the 2017 Presidential election petition judgment before the Supreme Court settled the issue of flawed processes. The then Chief Justice David Maraga’s led the Supreme Court ordered a fresh election. She added that if it is put side by side with the January 8, 2026, verdict, then the trio were wrong in fashioning their own remedies.

“ These are not necessarily irreconcilable positions; courts do have discretion in fashioning remedies, but the distinction must be clearly reasoned and transparently justified because the precedent being set will govern how future impeachments are conducted and how future courts respond to violations within those processes.”

“ My concern is about the precedent this decision may establish. If a constitutional violation during impeachment proceedings can be remedied by damages without disturbing the outcome, future Parliaments and Senates may not feel the full weight of their constitutional obligations when handling removal proceedings,” she said.

She was of the view that, just as the court recommended, Parliament needs to come up with a framework to steer the removal of a DP.  She asserted that the legislative gap should not have existed for 16 years.

“ A constitutional democracy is built on the integrity of its processes, not merely its outcomes. We must ensure that the right to a fair hearing in Kenya remains substantive and not merely symbolic,” added Odhiambo.

Former Judicial Service Commission (JSC) commissioner Macharia Njeru agreed with Ms. Odhiambo. He said that the High Court had taken an about-turn on the finding that if a process is tainted, then the end result ought to be annulled.

“ The Supreme Court of Kenya in 2017 nullified the Presidential election where millions of Kenyans had voted on the basis of procedural defects. They said it didn’t matter the outcome as long as the process was tainted with irregularities and illegalities. Now in the Gachagua case the High court has taken a complete about - turn. This decision has created a very dangerous precedent,” said Macharia.

Odiambo’s predecessor, senior lawyer Theuri, alleged that the Gachagua judgment was an indicator of a ‘captured court.’ He  also termed the verdict of the trio as an absurdity. He averred that the ripple effect of an impeachment was that the person involved cannot vie, hence, compensation could not be a remedy provided for.

“The Gachagua judgment is a political decision at best, as it is legally absurd. The Constitution expressly provides that any decision in violation of rights is void. The effect of impeachment is that the person cannot hold public office. So, how does a decision in violation of rights for which the Court has awarded damages operate as a bar to running for office? Those are judicial gymnastics that reflect a captured court,” he said.

Theuri’s point of view was similar to that of law professor Migai Aketh, who said that the affirmation of impeachment and the order for compensation were conflicting. He suggested that the Judges would have directed the upper house to do a fresh hearing.

“ On what basis does the High Court determine that Riggy G should have 50m as compensation for the violation of his right to a fair hearing? This is a merits review that goes beyond the court's jurisdiction. Court should have remitted the matter to the Senate to conduct a fair hearing,” paused Prof. Migai.

 Senior lawyer Ahmednasir Abdullahi, on the other hand, pointed out that the right to a fair trial cannot be limited. According to him, his prediction that the High Court would lift the orders that kept Gachagua in office, paving the way for Kindiki to be sworn in, then would find his rights were violated.

He argued that the final verdict cannot stand.

“ Under Article 25(c) of the Constitution, the right to fair trial is a non-derogable right. So how can the court make quasi-constitutional excuses on amorphous grounds in its refusal to set aside the impeachment of Hon Rigathi Gachagua? The Gachagua judgment in my humble opinion is on a shaky, shallow, soggy and sandy soil,” said Ahmednasir.

Senior lawyer Nelson Havi also waded into the issue. He was of the view that there was a problem, which had allegedly not been addressed.

“It was good that the entire judgment was read word for word and broadcasted live for ten hours to the entire Kenyan public. How else would you have understood the problems we keep pointing out daily about incompetence, misconduct and misbehavior by a Judges?” he paused.

In their judgment, the trio held the Senate could not abandon its decision to hear the two parties in person, when opt to consider Gachagua’s written submissions without telling his side of the story.

 The court noted that none of the Senators disputed that Gachagua had fallen ill. Instead, she said, the Senate, despite having an opportunity to adjourn, opted to proceed without hearing him.

The trio ruled out reinstating Gachagua, saying the Constitution contemplated finality of Senate’s vote to impeach. They, however, observed there was a dilemma on what to do whenever courts find there was a violation of the Constitution in the process.

The Judges also weighed in on the plenary and special committee arguments. They said the upper house had the power to choose between the plenary and the special committee way, but only after hearing and considering the charges. Further, in the judgment read by Justice Mrima, it was said that, from the Hansard, there is no evidence to show that Senators debated the same or the validity of the charges before deciding whether to subject the charges to a special committee or have the same settled by the plenary.

The judge added that the upper house is not a conveyor belt of issues emanating from the lower house. He further noted that the word may is anchored on the consideration of the Senate to interrogate the charges or not.

Justice Mrima said that the court could not approve the position taken by the upper house.

“ The record shows that once the motion was laid before the house, the charges were read out, and the supporting evidence standard, that was all, no resolution admitting the motion to a full hearing was made. The Senate, instead, proceeded directly to address itself to the issue of the charges. In our view, we will not have approved this,” he said.

jmuthoni@standardmedia.co.ke

--- Ends ---

Quotes:

Charles Kanjama:

This is the first time in my experience as a lawyer that the court has made a clear finding that the right to a fair trial was substantively violated but has failed to reverse the underlying outcome of that fair trial. The court said our hands are tied because impeachment is final; we cannot undo it. The court at that time said we can overturn the outcome of the impeachment, but today it has said once the impeachment is done, it cannot be overturned. There is a lot of inconsistency in the decision of the court.

Tess Wavinya:

That is a very troubling precedent: constitutional rights may be infringed and the violation remedied merely through an award of damages. It is difficult to reconcile a finding that a process violated a non-derogable constitutional right with a conclusion that the outcome of that very process remains valid. If the process was fundamentally unconstitutional, one would ordinarily expect the resulting decision to be similarly tainted,

Faith Odhiambo: Former LSK President 

My concern is about the precedent this decision may establish. If a constitutional violation during impeachment proceedings can be remedied by damages without disturbing the outcome, future Parliaments and Senates may not feel the full weight of their constitutional obligations when handling removal proceedings

Macharia Njeru: Senior Advocate 

The Supreme Court of Kenya in 2017 nullified the Presidential election where millions of Kenyans had voted on the basis of procedural defects. They said it didn’t matter the outcome as long as the process was tainted with irregularities and illegalities. Now in the Gachagua case the High court has taken a complete about - turn. This decision has created a very dangerous precedent.

Prof Migai Aketch: Senior Advocate 

On what basis does the High Court determine that Riggy G should have 50m as compensation for the violation of his right to a fair hearing? This merits review that goes beyond the court's jurisdiction. Court should have remitted matter to Senate to conduct a fair hearing.

Nelson Havi: Senior Counsel

It was good that the entire judgment was read word for word and broadcasted live for ten hours to the entire Kenyan public. How else would you have understood the problems we keep pointing out daily about incompetence, misconduct and misbehavior by a Judges?

Ahmedmnasir Abdulahi : Senior Counsel

Under Article 25(c) of the constitution, the right to fair trial is a non-derogable right. So how can the court make quasi constitutional excuses on amorphous grounds in its refusal to set aside the impeachment of Hon Rigathi Gachagua? The Gachagua judgment in my humble opinion is on a shaky, shallow, soggy and sandy soil.