3-Judge Bench Lets Senate Proceed With Gachagua Impeachment Hearing
The court had ruled that DP Gachagua's petition to stop his impeachment raised constitutional issues that required further judicial interrogation.
Marvin Chege 
Embattled Deputy President Rigathi Gachagua will face the Senate plenary between Wednesday, October 16 and Thursday, October 17 after the three-judge bench appointed by Chief Justice Martha Koome to hear and determine petitions filed by the second in command dismissed a last-minute petition to halt his impeachment.
The three-judge bench presided by Judges Eric Ogola, Fridah Mugambi and Anthony Mrima ruled that the Constitution outlined separation of powers thus barring the High Court from stopping the Senate's proceedings.
The court had ruled that DP Gachagua's petition to stop his impeachment raised constitutional issues that required further judicial interrogation.
According to the High Court judges, the Senate's proceedings to impeach the second in command were lawful and the Senate plenary would equally determine all the issues raised by the petitioner in his suit.
The Milimani Law Courts in Nairobi. /FILE
"It is our view that this is not one such case where intervention is automatic. The issues raised by the parties will be required to be interrogated. We, therefore, find that the enhancement of the constitutional principle of separation of powers will be best served by declining the application at this point," the court ruled.
"The Senate will conduct a trial where all the issues raised before the court will be addressed. At the moment, we are being called upon to anticipate an outcome of a process that is yet to be completed, the application in this stage is premature."
This ruling means nothing stops the Senate from hearing and determining Gachagua's impeachment, more than a week after 281 Members of Parliament voted to oust him.
However, Gachagua was offered a chance to appeal his dismissal by the Senate plenary at the Court of Appeal, should the Senators decide to uphold his impeachment.
"On the issue that has been raised that as soon as the Senate impeaches the DP, if at all that happens, that the DP immediately ceases holding office and that it cannot be reclaimed, we take the view that every office holder can only assume office legally and constitutionally," the court stated.
On Tuesday, October 15, the High Court refused to issue conservatory orders barring the Senate from moving ahead with debating the impeachment of the second in command.
Justice Chacha Mwita dismissed Gachagua’s petition that sought to block the Senate from acting on the National Assembly’s resolution passed on October 8. Mwita opined that the Constitution has delegated the impeachment process to Parliament, and the court must show prudence in meddling with it.
The DP, through his legal team, had applied for a certificate of urgency to prevent Parliament’s trial chamber from considering the ouster motion.
Gachagua's petition, filed last week, argued that the impeachment motion was flawed and deviated from the original accusations against him. He requested a conservatory order to stop the Senate hearing, insisting, "Pending the hearing and determination of the substantive petition herein, a conservatory order should be issued restraining and prohibiting the Senate from proceeding with the impeachment hearing."
Gachagua’s legal team criticised the impeachment as a personal attack on him and his family, claiming that the accusations did not meet the threshold of gross misconduct. He also argued that the motion violated the legal doctrine of exhaustion, asserting that alternative remedies should have been explored before resorting to impeachment.
However, Justice Mwita ruled that there was no basis to halt the Senate’s proceedings, noting that the court could not interfere with the constitutional mandate of Parliament. As it stands, Gachagua's fate is set to be decided on Wednesday, October 16, and Thursday, October 17, when he faces the Senate.
Even before the High Court's ruling, the Senate through Speaker Amason Kingi on Monday, October 14 affirmed that no court orders could stop Parliament from fulfilling its constitutional duties.
