By Benadeta Mwaura - Reporter
Kenya, August 17, 2026 - Former Deputy President Rigathi Gachagua has moved to the Court of Appeal to challenge the High Court judgment that upheld his removal from office, arguing that the three-judge bench made fundamental errors in interpreting the Constitution and in determining the consequences of violations committed during his impeachment.
Gachagua filed the appeal after the High Court ruled in June that his constitutional rights to a fair hearing and fair administrative action had been violated during the Senate impeachment proceedings, but nevertheless held that the violations could not reverse his removal from office.
The appeal brings the two sides of the June judgment into sharper focus: while the High Court recognised that aspects of the impeachment process were unconstitutional, it concluded that the Senate's resolution could not simply be nullified.
Gachagua is now asking the appellate court to reconsider that position.
At the centre of Gachagua's appeal is the High Court's finding that his rights under Articles 47 and 50 of the Constitution were violated when the Senate declined to grant an adjournment of the impeachment proceedings.
The High Court awarded Gachagua KSh50 million in constitutional damages, saying the award was intended to vindicate the Constitution, restore his dignity and deter future violations.
But Gachagua argues that recognising a constitutional violation while leaving the resulting impeachment intact creates a contradiction.
His position is that the right to a fair hearing is a fundamental constitutional guarantee and cannot be set aside simply because impeachment proceedings are subject to strict constitutional timelines.
He is therefore challenging the High Court's conclusion that the Senate's decision to remove him was final and could not be reversed through judicial review.
The appeal argues that no act carried out in violation of the Constitution should be beyond the reach of the courts.
Gachagua is asking the Court of Appeal to declare the Senate resolution of October 17, 2024, which removed him from office, unconstitutional, null and void.
That would represent a significant departure from the High Court's conclusion.
The three-judge bench found that although his fair-hearing rights had been infringed, overturning the impeachment would create what it considered a constitutional problem because Article 145(7) makes the Senate's impeachment decision final and because reversing the removal could create the possibility of dual incumbency.
Gachagua argues that the High Court correctly recognised the mandatory nature of the investigatory stage of impeachment and the importance of the committee process where evidentiary issues arise, but then reached what his lawyers describe as an illogical conclusion when applying Article 145.
The appellate court will therefore have to grapple with a difficult constitutional question: what should happen when an impeachment process results in removal from office but a court subsequently finds that the individual's constitutional rights were violated during that process?
Gachagua is also challenging the High Court's treatment of public participation.
He argues that both the National Assembly and Senate failed to facilitate adequate public participation during the impeachment process.
His lawyers have invoked the Supreme Court's decision in the British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health and Others case, arguing that public participation must be meaningful both qualitatively and quantitatively.
The appeal also challenges Standing Order 64(2) of the National Assembly, with Gachagua arguing that the timelines provided under the Standing Order undermined meaningful public participation as well as his right to a fair hearing.
The appeal extends beyond the impeachment itself.
Gachagua is challenging the High Court's finding concerning the appointment of Kithure Kindiki as Deputy President following his removal.
He argues that the court erred in concluding that public participation was not constitutionally required for the nomination and approval of Kindiki under Article 149(1) of the Constitution.
The issue is significant because Kindiki's appointment followed directly from Gachagua's removal, meaning that any appellate decision substantially altering the legal position surrounding the impeachment could have implications for the constitutional succession process that followed One of the more unusual grounds in Gachagua's appeal concerns the judgment delivered by the High Court.
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Gachagua alleges that the judges read four additional paragraphs immediately after paragraphs 484, 488, 503 and 508 when delivering the judgment in open court.
He claims those portions were subsequently absent from the written judgment.
According to his appeal, the discrepancy means the written judgment did not fully reflect what was delivered in open court and that the High Court effectively modified its judgment after delivery.
He wants the Court of Appeal to remit the judgment to the High Court for the limited purpose of correcting the record and directing the Registrar to insert the allegedly omitted portions.
If established, the issue could add another layer to an already complicated constitutional dispute.
The former Deputy President's appeal comes shortly after the Senate and its Speaker also moved to the Court of Appeal to challenge parts of the same High Court judgment.
The Senate is particularly contesting the finding that Gachagua's fair-hearing rights were violated and the KSh50 million damages awarded against it.
The Senate argues that Gachagua was given an opportunity to participate in the proceedings and that his lawyers had previously been granted additional time.
It maintains that the request for a further adjournment was subjected to a procedural motion, debated and ultimately rejected through a vote.
The Senate also disputes the High Court's conclusion that Gachagua's absence from the proceedings was justified by illness, arguing that sufficient evidence had not been presented to it at the time to establish that his condition warranted an adjournment.
This means the Court of Appeal is now facing appeals from both sides of the dispute.
Gachagua wants the court to go further and overturn the impeachment itself, while the Senate wants key findings against it—including the KSh50 million damages award—to be overturned.
Gachagua was impeached by the Senate on October 17, 2024, following his removal by the National Assembly and a subsequent Senate trial.
The High Court's June 2026 judgment did not restore him to office, but it also did not give the Senate an unqualified victory.
Instead, it established that a constitutional violation had occurred while maintaining that the violation did not invalidate the impeachment.
The Court of Appeal will now be asked to determine whether that balance was legally sustainable.
For Gachagua, the appeal is an attempt to go beyond the KSh50 million compensation awarded to him and obtain a declaration that the process that removed him from office was itself unconstitutional.
For the Senate, the case presents an opportunity to challenge the finding that its handling of the impeachment proceedings violated Gachagua's constitutional rights.
The case therefore now moves into a new phase, with the Court of Appeal potentially having to settle questions about the limits of parliamentary power, the finality of impeachment decisions, fair-hearing rights and the consequences of unconstitutional conduct by state institutions.
For now, Gachagua remains out of the Deputy President's office.
What he is asking the appellate court to decide is whether the constitutional violations identified by the High Court should have consequences that go beyond compensation—and ultimately whether they were serious enough to invalidate the impeachment that removed him from office.