Beyond the Blogosphere and Political Punditry: The First Serious Legal Audit of Gachagua & Others v Speaker, National Assembly & Others
Issue 004 — Special Edition
On 8 June 2026, a Constitutional bench of the Kenyan High Court [“the Court”] (Ogola, Mrima & Mugambi JJ.) delivered the much-anticipated judgement in Gachagua & 57 others v Speaker, National Assembly & 35 others [2026] KEHC 8198 (KLR), which sealed the fate of the former Deputy President Rigathi Gachagua. Crucially, the judgement portends far-reaching constitutional novelty and political magnitude. Novel because this was the first-ever Deputy President’s impeachment judicial determination under the Constitution, and there being no prior precedent, the Court was writing on a blank page. Every finding is, in effect, res nova, in the context of this office.
Right from the outset, it is noteworthy that the Court deserves commendation for engaging with the issues carefully and delivering a judgement of intellectual seriousness on a debutant case. But there is no synonymity between intellectual seriousness and analytical contradictions, doctrinal gaps, and remedial failures in the judgement, which every advocate must comprehend for purposes of challenging them in subsequent cases or appeals and working around them in future litigation. For ease of reference, this critique adopts a thematic structure that aligns with the judgement itself.
I. The Finding on Fair Trial: The Right Answer, Fatally Under-Remedied
The most substantive finding by the Court was that the Senate violated Articles 47 and 50 rights of H.E. Gachagua upon its refusal to adjourn when his opponents finished their adversarial presentation during the proceedings [449-468]. In this sense, the Court’s “equality of arms” reasoning is properly hinged, as further supported by the evidence from the Hansard, which demonstrated that the Senators had information about the illness but proceeded to vote all the same [458]. By the Speaker’s own words, it was procedurally open to have an adjournment to Saturday 19 October [464]. On the strength of these facts, the Court held that this amounted to a structural violation of rights and not a simple imperfection in procedure, as Gachagua was not given the opportunity to present his case after his opponent completed their presentation.
The remedies show contradiction, which immediately fractures the judgement’s foundation. The Court found, and rightly so, that Article 25(c) unequivocally makes Article 50’s fair trial right non-derogable [467]. The term “non-derogable” possesses a precise constitutional import and is not merely celebratory. It implies that the right is unlimited under Article 24; it cannot be displaced by other competing constitutional interests or yield to temporal finality, political expediency/urgency, or institutional convenience.
Yet, strikingly, the Court awarded Kshs. 50 million and a declaration, while the impeachment stands [509]. The rationale for refusal to quash is premised on two doctrines: dual incumbency risk and Article 145(7) constitutional finality. Neither of the two doctrines from the reasoning of the Court survives analytical rigour, as will be shown.
First, on constitutional finality, Article 145(7) expressly stipulates that if two-thirds of Senators vote to uphold an impeachment charge, the President shall cease to hold office. In the analysis, the Court takes an approach that renders the vote by the Senate unreviewable and makes its actions permanent. But that analysis is wobbly for the reason that it conflates two different doctrines: the legal effect of a Senate vote that is constitutionally invalid and the legal effect of a Senate vote that is constitutionally valid. Article 145(7) explains what happens in a case where the power of the Senate is lawfully exercised. Therefore, there is no rational reason to interpret it as entrenching the implications of a vote by the Senate undertaken in breach of a right that is non-derogable. Interpreting it otherwise is to say that the more fundamental the constitutional infringement, the more immunised the results are likely to be. This premise is jurisprudentially warped and doctrinally unsound because it inverts the normative hierarchy, a creation of the Constitution itself no less.
Curiously, no comparative jurisprudential analysis, Supreme Court precedent, or constitutional text is cited by the Court in this regard in support of its proposition that, through the operation of Article 145(7), constitutional finality is bestowed upon a Senate vote that is constitutionally infirm. At paragraph 18, the Court cites the precedent in Sonko v County Assembly of Nairobi [2022] KESC 76 (KLR), a case whose gist was whether the removal of a governor was justiciable. Sonko was limited to justiciability, and the Supreme Court was not invited to ventilate, and did not determine, whether an impeachable undertaking in violation of a right that is non-derogable is irreversible by operation of the Constitution.
Secondly, on the dual incumbency risk, the analysis by the Court perceives the risk of simultaneously having two Deputy Presidents in office as a potential problem that must be prevented. But, unclothed of its doctrinal bases, here is what the court says: that a constitutionally valid process was swiftly undertaken by the State to replace H.E. Gachagua, and the swiftness cured the underlying rights infringement from the deserved remedy. Implicitly, the finding affirms that a wronged party is less likely to recover if the State moves with speed to undertake that wrongful removal from office. This structure of constitutional interpretation is pervasive because it promotes institutional or State velocity as an instrument to extinguish non-derogable private rights. In its closing, while the Court expressly appreciates “dual incumbency” as a perverse issue attributed to the State’s swift action, the bench nevertheless fails to draw any logical implications from its statement.
The analysis by the Court manifests an even deeper problem by simultaneously ruling that: (a) fair trial right is non-derogable; (b) the right was breached; and (c) no consequence arises to the constitutionality of the act that breached the individual right. This is far from constitutional law. It is a constitutional contradiction, principally because non-derogability is either a distinct class or it is not. The Court cannot have a middle ground on this settled constitutional law principle.
For advocates, the correct approach for the Court would have been to explore a conditional quashing order to defeat the resolution of the Senate while stipulating that the quashing does not extend to Kindiki’s appointment as the Deputy President, an independent and constitutionally compliant process undertaken under Article 149(1). These two processes are legally distinct. The finding of the Court reiterated the validity of Kindiki’s appointment, which means it was not dependent on the validity of the resolution by the Senate. To quash the resolution by the Senate would have, by operation of law, restored Gachagua to office, while the constitutionally independent appointment of Kindiki is not declared void either. The “crisis” or risk of dual incumbency that the Court grapples with would then become an issue for the political branches, which is constitutionally resolved by invoking Article 148(7), which provides for vacation of office through resignation. The Court declined to directly confront this Constitutional architecture, elevating a potential political difficulty into a legal impossibility.
II. The Special Committee: Principled Analysis, Unjustified Surrender
This finding by the Court begins as intellectually stimulating but eventually becomes the judgement’s most frustrating aspect [423-448]. The section begins with a detailed tracing of the impeachment provisions’ drafting history through the Bomas Draft (mandatory committee), the Wako Draft (mandatory committee), and the Harmonised Draft to locate them in the proper context and history [423]. At the end, the Court ruled that the consistency in history justified its premise that the drafters meant to have a mandatory committee. The Court formulates an Article 145(3)(b) interpretation that is highly sophisticated and built on two phases: firstly, the Senate hearing and resolution to admit the motion; and secondly, the procedure upon the motion’s admission. The argument by the Court proceeds that the term “may” as used under Article 145(3)(b) applies to phase 1, which means that the Senate enjoys the choice whether to proceed or not, but once it makes the decision to proceed, it must do so through a special committee. The rationale is that Article 145(4), (5), and (6) speak very exclusively to the functions of special committees and do not allude to a plenary alternative. It highlights the absurdity that would arise in law were the Senate to investigate itself and shortly thereafter report the same findings to itself. Up until this point, the Court’s interpretation is historically supported, textually grounded and contextually coherent. The trouble lies in what the Court does with it next.
Having built a strong foundation in its analysis, the Court adopts the finding of the Supreme Court in Sonko, which ruled that proceedings of the Senate can occur in plenary or through a special committee [18]. By surrendering itself to Sonko “unreservedly and with the deepest respect”, the Court’s singular problem becomes that this decision was made in proceedings relating to a governor’s removal under the County Governments Act. The Court came close to naming it, specifically that the Act’s section 33 permits a dual-track method: “(h) by resolution, appoint a Special Committee... or (ii) investigate the matter in plenary.” Correspondingly, Standing Order 80 under the Senate Standing Orders, which governs proceedings for a governor’s removal is framed in the two alternatives approach. On the contrary, Standing Order 79 under the Senate Standing Order relating to the removal of a Deputy President stipulates a special committee but omits the plenary sitting option. The disconnect is not by accident. The analysis by the Court affirms as much that where framers intended that a plenary investigation would be undertaken, they expressly said so, as they provided for in the case of governors. For the removal of the President and the Deputy President, they omitted that alternative.
The ratio in Sonko did not analyse or interpret Article 145 [18]. Instead, the apex Court was invited to interpret the County Governments Act, and extrapolating the word “may” contained in the Act’s Section 13, which provides a discretionary mechanism for governors, does not transplant that same meaning to the Constitution’s Article 145(3)(b) in relation to Deputy Presidents. The doctrinal reason is that there is a structural difference between constitutional and statutory contexts. The Court relies on its stare decisis duty which demands that it align with the rationes decidendi of superior court decisions, but the Sonko ratio was not delivered to interpret Article 145. Utilising the ratio as the Court did to justify the distinction between the gubernatorial dual-track as contained in the Act and the single-track mechanism for the President and Deputy Presidents under the Constitution is doctrinally warped. The Court explains no further.
This point is particularly vital for future litigation. The Court’s deference to Sonko here is binding on future decisions of the High Court. However, it is not binding on the Court of Appeal, which will have the chance to ventilate whether the ratio in Sonko is directly applicable in answering the constitutional question arising under Article 145(3)(b). The Court of Appeal must directly confront this distinction. Until then, the Bench has candidly laid the groundwork supporting the proposition that the Constitution foresees a mandatory committee, although the Senate is not bound to embrace it.
III. The Finding on “Necessary Modifications”: Strong Finding, But Unworkable Consequence
The Court found that the Parliament had failed to discharge its obligation under Article 150(2), specifically arguing that “with necessary modifications” is not a mere drafting convenience, and rightly so. The Bench was unequivocal that, given the architectural disconnect between the immunity enjoyed by the President under Article 143 versus the Deputy President, who does not enjoy the same immunity, a wholesale application of the framework for the removal of the President to the Deputy President would overlook the important constitutional distinction. Standing Order 79 and its National Assembly counterpart do not specify any modification and instead cross-reference the Constitution’s Article 145 directly without introducing any modifications. Towards this end, the Court is correct that there is a legislative gap.
From a logical prism, right here at this point, the judgement generates analytical tension it cannot resolve. If the Bench says that the impeachment framework was indeed structurally inadequate, if the Parliament had a duty to enact the necessary modifications but failed, then naturally it follows that the impeachment happened under a framework that was constitutionally defective. The question becomes: how would a framework that is constitutionally infirm yield an outcome that is constitutionally valid?
The answer provided by the Court is that under Articles 144 and 145, the Constitution itself creates “the minimum threshold” for undertaking such proceedings and that the Parliament relied on this floor. But the problem with this answer is that it conflates constitutional adequacy with constitutional minimum. Article 150(2) envisages that the framework for the removal of the President is not the constitutional minimum for the removal of the Deputy President and that adaptations are necessary. In this case, therefore, if Parliament applies the framework under Article 145, which in effect satisfies Article 150(2), what this means is that Article 150(2) is rendered obsolete, and it becomes a superfluous constitutional provision. This kind of outcome in constitutional interpretation is what the constitutional purposivism and ejusdem generis adopted by the Court are supposed to avert. On the whole, the Court cannot find that Parliament failed in its constitutional obligation to adapt the necessary modifications and at the same time say that an action undertaken in breach of the obligation yielded a process or outcome that is constitutionally sufficient. The unyielding attempt to say otherwise depicts the pressure to avoid quashing the impeachment.
IV. Public Participation: Doctrinal Coherence at the Cost of Political Realism
The National Assembly Finding
The Bench ruled that the public participation by the National Assembly attained the stipulated constitutional baseline [309-355]. This holding is potentially problematic and portends far-reaching implications for future litigation. The BAT ratio, which the Court rightly alludes to, is the yardstick, and it demands subject matter clarity, an influence that is balanced, process commitment in a way that outcomes can be influenced by views, and the capacity to engage, including prior sensitisation [335]. At the National Assembly, the public received a 48-hour notice; the template for participation contained the prosecution’s case only and no responses relating to Gachagua’s. Ultimately, only 200,000 people of the total population of 52 million Kenyans participated, while Keiyo South had a 162.78% participation rate [340]. This, the Court dismissed, following its own recalculation of the date, even though there is a lack of clarity as to whether the error identified by the Petitioners is the same as that which the Court assessed in its 98.41% favourable outcome [340]. But no underlying data was produced in the judgement itself to evidence this disconnect in computation, and advocates will want to examine the original report in depth.
The finding by the Bench that upon opening of the door, the duty to facilitate is exhausted, and that any short-notice-related low turnout is not primarily the problem of the state, tramples upon the BAT ratio, which advocates for “reasonable notice and reasonable opportunity” as key ingredients of the process. The question is this: can a notice about a debutant and most consequential constitutional act of Kenyan Parliament, which records a participation of 0.5%, be deemed reasonable? The Court refused the invitation to delve into the arithmetic.
Crucially, the Court found that not availing the response of Gachagua to the public did not vitiate the exercise, primarily because the public was not required to adjudicate but only to express a view. But we were told in the BAT ratio that “opportunity for balanced influence” is critical. Flowing from this, if only the framing of the prosecution is available to the public, there cannot be a balanced influence. Once again, the Bench shunned the chance to confront this framework from BAT.
The Senate Finding
The finding that the Senate did not have any obligation towards an independent public participation is textually defensible but cracks when subjected to analytical rigour. The reasoning based on ejusdem generis through which the Court interpreted Article 118(1)(b) “other business” as meaning only those businesses whose character is legislative demands a prior legislative context assessment to ascertain what “legislative” means. While impeachment may be construed as non-legislative in the statute-making angle, it nonetheless remains a core business of the parliament as it discharges its constitutional duties. The Court relies on the Mwangaza decision as the basis for its “primary body” principle [345]. But this ratio revolved around the Senate and county assembly dynamics, which do not transplant comfortably to national impeachment in a case where it wields the Article 145(7) determinative vote, not merely confirmatory as is the case in the county assembly.
Under Article 145, the Senate does more than just confirm the decision of the National Assembly; it removes, which makes its vote the operative constitutional act by triggering the end of office holding. Therefore, on this premise, the argument mounted by the Court that the Senate is exempted from the Article 118 requirement because it sits as a quasi-judicial body is wobbly. There is no clear-cut exemption of quasi-judicial bodies from hearing the other party; instead, they are not expected to offer the same participation type as other bodies that are purely legislative. In its judgement, the Court handles this as a simple matter by examining whether public participation is required because Article 118 applies or it is not based on the exemption of quasi-judicial status. What the Judgement falls short of doing is to critically examine whether a modified public participation duty arises given the determination vote of the Senate.
The Article 149(1) Finding
The Court ruled that the vote by the National Assembly in respect of the nominee for Deputy Presidency amounts to an electoral act which attaches no public participation duty. This doctrinal claim is ambitious, and the linguistic separation between “approve” and “vote” is clever. But, as will be analysed, it stands on shaky ground.
The primary concern is that under Article 148(1), the requirements for the office of the Deputy President are directly tied to those of the President under Article 137. The mechanism for filling any vacancy is triggered under Article 149(1), although this provision stops short of creating a regime for new qualifications. Therefore, sui generis reading of Article 149(1) by failing to consider any of the substantive constitutional architecture that builds the office of the Deputy President, such as the absence of qualifications in Article 137, no vetting, no public participation, and no IEBC, represents a major interpretation disconnect. The Bench found that the 60-day window is intended not for the occurrence of public participation but for the Assembly voting process to happen. Read literally, the text states that the Assembly shall vote within 60 days of receiving the nomination. Nothing stops it from undertaking public participation simultaneously during that period. The interpretation that since “public participation” wording is omitted shows prohibition is jurisprudentially flawed, for the simple reason that silence simply does not require, but it does not prohibit.
V. The Bias Analysis: Correct Outcome, Thin Reasoning on the Speakers
In its judgement, the Court was right to separate predetermination from predisposition by finding that mere belonging to an impeachment supporting party does not itself disqualify legislators [294-308]. In this sense, the ruling was correct because objective evidence is required under the test stipulated in Rai/Rawal/Tunoi. Thus, political alignment alone cannot disturb political decision-making [304]. Nevertheless, the position of the Bench concerning the Speaker’s demands more assessment. The Court stated that the function of the Speakers is “facilitative and procedural” as they do not vote or debate the impeachment charges; hence, their pre-hearing statements made publicly do not meet the threshold for constitutional bias [306]. This analysis is right as it goes. But it is incomplete, principally because the procedural role of the Speakers impacts fair hearing directly. A presiding officer in an adversarial environment guides the debate conduct, adjournment decisions, time management, evidence admissibility rulings, procedural applications’ grant or refusal, and the order of the business. In the scenario of the Senate, the Speaker made a ruling on the constitutionality of the ten-day period, which was not, because the ten-day window is applicable not to plenary but to proceedings of the special committee. Additionally, the Speaker clothed the application for Senate adjournment in a way that encouraged the House’s refusal. These were not neutral actions of procedure. The portend substantive implications for the Petitioners. The Bench correctly appreciates the misdirection by the Speaker concerning the ten-day window in its fair trial analysis, but it fails to link this outcome to the bias aspect. If the ruling of the House Speakers substantively affected the proceedings given their public commitment to a given predetermined outcome, then the objective observer test yields a more nuanced outcome than the Court gave.
VI. The Standing Orders Analysis: Conditional Constitutionality Without Conditions
The Bench introduces a nuanced approach to its analysis of Standing Order 64(2) by showing the distinction between a provision that is “conditionally constitutional” and a provision that is “unconstitutional on its face” [357]. The variation is a constitutional law’s legitimate category as observed from a comparative jurisdictional lens through the doctrine of “as applied” challenges, which works in a similar way in the US. However, the Court insufficiently explains the specific unconstitutionality-triggering conditions. It asserts an implementation-related infirmity as opposed to the timeline itself, without offering implementation guidance that could be effected in the seven days, the court should examine relating to adequacy or the remedial aspects for a timeline that is compliant or deficient in terms of implementation. Thus, the ruling on “conditional constitutionality” is more academic and devoid of practical operational teeth [356-386]. Advocates involved in future impeachment proceedings will not have the information on the requisite court to approach, the timeline, or relief in a case where Parliament breaches constitutional substance while formally complying with Standing Order 64(2). Lastly, the recommendation from the Court for timeline extension by Parliament lacks any legal force; it is simply obiter. The Parliament embraces the seven-day window fully aware of the constitutional duties at hand, and as such, a recommendation to reconsider this timeline will likely be perceived as abstract, unable to yield any legislative moment without any compulsion from the judiciary.
VII. The Finding on Article 150(2) Lacuna and the Mandamus: Right Conclusion, Wrong Framing
The judgement grants mandamus to compel Parliament to enact the Article 150 regime [507]. The holding is right in principle but potentially problematic in practice: what happens if Parliament fails to comply? The mechanism for legislative defaults stipulated in Article 261 includes High Court petitions seeking orders directed towards Parliament or dissolution advice in case of refusal. However, this Bench steers clear of Article 261 and simply refuses to engage the toolbox at its disposal. The Court issues a blanket mandamus order that does not specify the timelines, minimum content, or any enforcement mechanism in case of failure. In practice, a mandamus absence compliance mechanism is a positive declaration clothed as a compulsory order. More crucially, if at this point in the judgement the Court now finds that the lack of framework impugns the impeachment process, then are there any constitutional implications for future impeachments amidst its continued absence? The Bench says none, and that the minimum constitutional dictates are adequate. So, then, the Parliament can securely ignore the mandamus with full knowledge that the court will similarly uphold any vitiated impeachments it may conduct in the future. In short, the mandamus is toothless.
VIII. Damages: The Quantum Problem and the Pension Non-Decision
Quantum
The Court rules that Kshs. 50 million is a sufficient remedy, an adjustment from Kshs. 15 million in Gitobu Imanyara’s more than ten years ago. But the Bench says little about where the adjustment is from; it is, at best, arbitrary because it fails to document any methodology or comparative baseline it used. It quotes with approval the Privy Council sitting in Ramanoop by saying that vindicatory damages “public outrage, the importance of the constitutional right, the gravity of the breach, and [deter] further breaches.”
An elected Deputy President’s removal from office through a vitiated procedure that overturns the will of the populace is the gravest possible constitutional rights breach in Kenya. And an award of Kshs. 50 million, which translates to US$385,000 at the time of this publication, is hard to classify as proportionate to the magnitude of the harm or deterrence driven. The principle laid down in Ramanoop similarly pre-empts an “additional award” which transcends compensatory damages to depict the violation’s constitutional dimension. In the judgement, the Bench conflates the compensation function with the vindicatory function by failing to distinguish both properly. The advocates for Gachagua prayed for quantified damages of Kshs. 42 million in lost salary, Kshs. 22 million in gratuity, while others included damages for pension, transport allowances, and security benefits. The Court refuses to directly confront these figures, instead handling pension as a matter improperly before it and emoluments as forming part of the general award. The arithmetic fails because the awarded vindicatory damages are far below the total special damages prayed for.
The Pension Decision
The Court declines to decide whether a Deputy President who is impeached is a “retired Deputy President” for purposes of the Retirement Benefits Act. This is a major doctrinal gap in the judgement. The Bench claims the issue was not argued before it properly, but it was expressly pleaded by Gachagua through the prayer for pension entitlements. The parties addressed the Court on damages, which aspect was argued by Counsel, and to say the issue was not improperly before the Court since “none of the parties addressed us on this issue” regarding the specific point on statutory interpretation deserves more scrutiny. The interpretation question may not have been clothed in those exact words, but entitlement was an issue squarely before the Court.
The practical implication of this finding is that Gachagua must approach a different forum, be it the High Court or the Employment and Labour Relations Court, with a judicial review application to hear and make a determination about pension entitlements. The next forum will have to confront these same questions the Court refused to address. What the silence of the Court does is to defer a live question which it was in the best position to resolve once and for all.
IX. The Omission on Ground 8
Another issue that the Court declined to answer relates to Ground 8 of the impeachment charges based on Section 132 of the Penal Code, a challenge mounted by Gachagua. The provision was declared unconstitutional in Robert Alai v Attorney General [2017] KEHC 6090 (KLR), and the question posed to the Court was whether a motion of impeachment, which is premised on a repealed or unconstitutional statutory provision, can constitute a valid ground. This constitutional question has far-reaching implications for future advocates in impeachment proceedings, and the silence of the Court was conspicuous. The question was not even tackled in the analysis relating to public participation, effectively leaving it unresolved and wide open whether such a charge can be supported within the constitutional test meaning.
X. The Structural Critique: What the Judgment Reveals About Kenya’s Constitutional Architecture
Away from the inconsistencies inherent in its internal analysis, the judgement serves a pivotal function of highlighting the Kenyan constitutional architecture. At its core, it candidly identifies that the Constitution exemplifies what it calls a “constitutional dilemma”, meaning there exists a salient tension between the need to vindicate individual rights infringed in the course of the vote on one hand and Article 145(7) finality on the other. To cure this “dilemma”, the Court proposes an amendment to the Constitution. The analysis is right, even though the Court should have expounded further by identifying the specific flaws in systemic design which were exposed in the case.
Secondly, the judgement exposes the lack of judicial intervention during the pre-impeachment phase. The Petitioners decried that the conservatory orders preventing Kindiki’s swearing-in were lifted before hearing of the petition, yet the constitutional architecture offered no mechanism allowing courts to stop impeachment pending a review of the constitutionality. What this means is that at the point when the court pronounces itself, the political facts have crystallised. Article 150 regime, which the Parliament may enact, must consider this aspect, and the Court should have been categorical in specifying this in the mandamus order it issued.
Third is the problem of the dual function of the Speakers, including their role in presiding over the proceedings, notwithstanding their public utterances committing to a particular outcome. There is no constitutional requirement that demands Speakers’ recusal from the proceedings during impeachment, notwithstanding their bias. There is urgency to address this gap in any statutory regime to clarify whether a Speaker who has declared a position could be replaced by another member of the panel.
Fourth, there is the misdirection relating to the ten-day window. The Court reiterates, based on its constitutional analysis of facts, that Article 145(4)(b) was misread by the Senate, which allowed it to introduce a non-existent 10-day plenary proceedings deadline. The ten days were meant for the process in the special committee, a major constitutional error by the Speaker, which hastened the proceedings and denied adjournment. In its fair trial analysis, the Court rightly observes this, but it fails to draw any further consequence emanating from it directly. If the timeline of the Senate was accentuated by constitutional interpretation misdirection by the Speaker, this directly implicates the entire proceedings and transcends the specific denial of adjournment. The Court should have said so explicitly.
Conclusion for Practitioners
Gachagua is an important decision for all constitutional litigants. Its most fruitful facet is the analysis of a fair trial, specifically the principle of equality of arms, which is analysed in detail from its adversarial angle. This principle is immediately relevant and directly applies to quasi-judicial proceedings of the Parliament. But the judgement fails in its remedial analysis: it speaks to the claim that a right that is non-derogable can be safely infringed and compensated through an award without the violating act being quashed. That is a proposition from a judicial authority, a constitutional bench of the Kenyan High Court no less, which, if left unchecked on appeal, could impede constitutional litigation for many years to come.
The judgement’s most pragmatic implication relates to the legislative orders directing the Parliament to enact an Article 150 statutory regime. What this means is that any future challenge to impeachment of a Deputy President undertaken with that proposed law, or if the Standing Orders remain unadapted, will experience a challenge that is structurally more robust than this case. Advocates advising clients in future proceedings would do well to document, in real time, every procedural (mis)step against the constitutional requirements this judgment has now articulated.
But the Court leaves wide open the question whether the doctrine of “constitutional finality” as constructed in this decision is a principle of constitutional resignation or a principle of constitutional supremacy. Here, the Court elected to uphold constitutional stability over constitutional fidelity. That choice by this constitutional bench deserves and will undergo intense scrutiny at the appellate level.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.