Rigathi: Mutuse had no evidence that I could even hurt a fly

Kibwezi West MP Mwengi Mutuse. [File, Standard]

Former Deputy President Rigathi Gachagua yesterday told the High Court that the attempt by the Attorney General and the Senate to avoid reopening the events of October 17, 2024 was aimed at preventing judges from finding that his accuser, Kibwezi West MP Mwengi Mutuse, had no evidence to show he could even hurt a fly.

In his final submissions, Gachagua’s lawyer, Paul Muite, said that, on the contrary, scrutiny of the Hansard would show that Mutuse relied on  unsubstantiated claims to support the impeachment motion.

“The reason for this political doctrine being pushed by the Attorney General and the Senate is that they do not want this court to evaluate the evidence adduced by Mutuse. They do not want you to examine the cross-examination of Mutuse by Senior Counsel Ongoya, because the court will come to the inevitable conclusion that there was no evidence even to support a conviction for a traffic offence,” said Muite.

He argued that Gachagua was condemned unheard, adding that no one raised any objection or concern when he explained that he had taken ill.

“The Speaker accepted that he was sick and wished him a quick recovery. The Minority Leader, Senator Mwadzayo, also extended his wishes,” he said, adding that the Senate could have sent a doctor to Karen to verify whether his claims were true.

“The Senate never raised, on October 17, any question as to whether or not Gachagua was sick and admitted,” he added.

According to Muite, senators were aware that Gachagua’s lawyers would not have access to him as doctors were attending to him.

He maintained that the former Deputy President was condemned unheard.

“If he had been given that opportunity, he would have demonstrated that he never stole from his late brother Nderitu Gachagua’s wealth,” he said, describing claims that he began misappropriating his brother’s property before the body had even left the morgue as “vitriol dressed in eloquence”.

He added that both the Senate and the National Assembly acted with a predetermined outcome in mind, alleging that while the Senate was still in session, the National Assembly had already gazetted a special sitting to approve his replacement.

The senior lawyer argued that this occurred before the Senate had even commenced its hearings.

He further submitted that the speed of the succession process violated the Constitution, noting that the law provides a 74-day period for the replacement of a Deputy President.

“The Constitution allows at least seventy-four days to replace a Deputy President. Rushing through this process in under twelve hours, the respondents committed grave constitutional wrongs, rendering the appointment of Professor Kithure Kindiki as Deputy President unconstitutional, hence invalid,” Muite argued.

He said that on the night of the impeachment vote, the Senate voted to remove Gachagua, President William Ruto nominated Professor Kindiki the same night, and the National Assembly approved the nomination the following morning.

He maintained that the matter was not an employer-employee dispute, but a question of the will of the people being overturned, and argued that his client was entitled to damages.

Another lawyer, Evans Ogada, urged the court to consider whether all relevant stakeholders were afforded an opportunity to participate in the impeachment process. He told Justices Eric Ogola, Freda Mugambi and Anthony Mrima that the court should not shy away from overturning the Senate’s decision if it found the process was flawed.

“In examining the impeachment process, there are rights involved, and the Constitution allows you to review. Kenya adopts a checks-and-balances model rather than a complete separation of powers. Where the impeachment process fails the constitutional standards, the court must say so," argued Ogada.

He added that the correct decision would be “the courageous one — to uphold the supremacy of the Constitution over convenience, principle over pressure, and the rule of law over impulse”.

Lawyer Kibe Mungai urged the court to “reverse the clock” to the position before Gachagua’s impeachment. He argued that although the former Deputy President was no longer interested in office, the court should ensure Kenyans have a properly elected second-in-command.

Lawyer Ndegwa Njiru, aligning with that view, argued that the Independent Electoral and Boundaries Commission (IEBC) was not a bystander in Professor Kindiki’s assumption of office.

He said parliamentary voting was equivalent to an exercise reflecting the will of the people, and therefore the IEBC ought to have been involved.

He further claimed that the former IEBC CEO, Marjan Hussein Marjan, unlawfully usurped the powers of commissioners by responding on Professor Kindiki’s suitability.

Njiru argued that 270 Members of Parliament could not impeach a Deputy President without reflecting the voice of 14 million voters.

“The people who elected their Deputy President have a legitimate expectation that he was legally and procedurally impeached if they followed the law to the letter and we feel satisfied, we would not have been before you,” argued Njiru.

Lawyer Ole Kamwaro on the other hand told the court that MPs committed a coup, by using numbers and turning a blind eye to the strict Constitution requirements for the removal of a Deputy President.

He accused MPs and senators of hypocrisy, saying they condemned tribal politics while engaging in similar practices in appointments and distribution of opportunities.

“The impeachment characterizes a textbook parliamentary coup. When plunder comes, a way of life, a legal system is fashioned to authorise it. This is not in truth a case about impeachment. It is about the use of the constitutional process top legitimize a predetermined outcome,” he argued.

He added that Parliament had set a dangerous precedent of “tyranny of numbers” over constitutional process.

 “Yet, when it comes to political expediency, the same actors, the real tribalists, turn to accuse others and claim moral authority,” he said, adding that what happened in Parliament was a political fallout which was enabled by alignment rather than the crimes committed.

The judges said they will deliver their ruling on June 8 2026 at 10am.