WHAT THE GACHAGUA RULING ASKS OF KENYAN JURISPRUDENCE

By Tim Munyi Mugo | Advocate of the High Court of Kenya

On 8 June 2026 a three-judge bench of the High Court did something Kenyan jurisprudence has not had to do before with this much clarity. It found that a constitutional right had been violated, and then declined to undo the act that violated it.

The bench held that former Deputy President Rigathi Gachagua's right to a fair hearing was infringed when the Senate declined to grant an adjournment despite his absence from the impeachment proceedings. It then upheld the impeachment itself, finding that the broader process met constitutional thresholds. The remedy for the violation was not reinstatement. It was fifty million shillings in constitutional damages, and a declaration calling on Parliament to legislate a dedicated framework for impeaching a Deputy President.

This is not a story about whether Gachagua should or should not have been removed. That question belongs to politics, to the Senate's numbers, and eventually to the Court of Appeal and Supreme Court, where it is now headed. The question worth sitting with is a narrower and more durable one. Can a court find a process unconstitutional in itsexecution, and constitutional in its outcome, at the same time?

The court answered with the grundnorm

The bench did not dodge the tension. It named it directly. In its own words, the Constitution is the grundnorm, and where that grundnorm deliberately and clearly limits the power of the court, that limitation must be respected. The judges warned that invalidating the impeachment over the fair hearing breach alone would create confusion in leadership, potentially producing two Deputy Presidents at once, an outcome the Constitution's structure could not accommodate.

This is a coherent position. It is also a consequential one, and it deserves to be examined rather than simply repeated. The court was not saying the violation did not matter. It was saying that, weighed against the cost of unwinding a completed constitutional succession, the violation could not be the instrument that unwinds it. Structural stability was ranked above individual remedy. The fair hearing breach was converted from a power capable of voiding the outcome into a power capable only of pricing it.

That is the part every future impeachment respondent, in any government, of any political colour, should read closely.

What severability actually does to deterrence

Due process exists to discipline power before the fact, not to compensate for its absence after. A Senate considering whether to deny an adjournment, rush a hearing, or skip a procedural safeguard now has a clear data point. If the violation is severable from the outcome, the downside of cutting a corner is monetary, payable by the institution rather than by any individual decision maker, and the upside, a faster, cleaner removal, is secured regardless.

The court tried to answer this directly, stating that the fifty million award was meant to vindicate the Constitution, restore the dignity of the affected party, and deter future violations. Whether a damages award against an institution, rather than any personal consequence for the individuals who denied the adjournment, can carry real deterrent weight is an empirical question Kenya's constitutional law has not yet had to test twice. It will be tested again. 

Impeachment is now a live instrument in Kenyan politics, not a theoretical one, and the precedent set here travels to the next officer, in the next administration, regardless of who currently holds power.

The doctrine working quietly underneath

The ruling also rejected the proposition that legislators acting from political conviction equates to constitutional bias, holding that holding political views or expressing opinions on a matter does not, by itself, invalidate proceedings against an officer. This is the political question doctrine doing its work without being named outright.

Impeachment is textually a power assigned to elected numbers. The court drew a careful line: it would police the procedure Parliament must follow, but it would not treat ordinary political conviction as a disqualifying bias. That line is defensible. It is also exactly the line that makes the severability problem unavoidable, because if political conviction is permitted and procedure is policed only loosely, the remedy for a procedural breach will almost always arrive as compensation rather than reversal.

One further matter deserves a single honest sentence rather than silence. Gachagua's legal team has since raised concerns with the court registry that the judgment copy supplied to them was unsigned and shorter than the version read in court. That is a documentary integrity question now properly before the registry, separate from the jurisprudential question this piece addresses, and it should be resolved through that channel rather than through public argument.

Why this matters past one man's case

Kenya's constitutional architecture has now produced a clear template: a fair hearing violation in an impeachment can coexist with a valid impeachment. Parliament has been told, in the same judgment, to legislate the procedure properly so this template is not needed again. Whether that legislation arrives, and whether it closes the gap between violation and remedy that this ruling opened, is the test that will define whether Kenyan impeachment law matures or simply repeats itself the next time politics demands a fast removal.

The grundnorm held. The gap it left behind is now part of Kenyan constitutional law, whether anyone intended it to be or not.
 

Tim Munyi Mugo is an Advocate of the High Court of Kenya, Co-Founder of Veritas Governance Institute, and author of Governed or Captured. This article addresses the jurisprudential question raised by the ruling and takes no position on the political questions arising from it.

 

 

 

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Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance.