Senate begins to appeal Gachagua's ouster ruling

DCP party leader Rigathi Gachagua flanked by MPS and his deputy Cleopas Malala during a media briefing at his Karen Residence [Benard Orwongo,Standard]

The Senate has kicked off the process of filing an appeal against the High Court ruling that granted former Deputy Rigathi Gachagua a Sh 50 million reward after his rights were found to have been violated during his 2024 ouster process.

While absolving the Senate from any wrongdoing yesterday, Speaker Amason Kingi communicated to the House that he had instructed the Senate lawyers to file an appeal challenging the ruling.

In his Communication to the House, Kingi said that while the Courts faulted the Senate for violating Gachagua’s rights, it failed to account for the events of the day leading up to its refusal to grant the former Deputy President an adjournment of the sitting due to ill health.

The Speaker recounted that the impeachment process had proceeded without incident and in the presence of the former Deputy President until the last day when the Senate adjourned for lunch. The National Assembly, he said, had concluded, including evidence in chief, cross-examination, and re-examination.

He stated that the former Deputy President and his counsel were made aware that Gachagua would take the stand on resumption, after lunch but upon resumption, Senior Counsel Paul Muite, for the former Deputy President first began by informing the Senate that he was not aware of his client’s whereabouts forcing the Senate to temporarily suspend the proceedings to allow Senior Counsel Paul Muite to establish the whereabouts of his client. Upon resumption, after a long wait, Counsel stated that he had learned his client had fallen ill.

According to the Speaker, the counsel did not make any effort, even when requested by the Senate, to provide any evidence to support this claim.

“However, the Court determines that the Senate should nevertheless have allowed the adjournment request. In essence, the High Court is telling this Senate that it had to allow an adjournment request that was not supported by any evidence to substantiate a claim of illness or other reason for the former Deputy President's unavailability. This finding is even more troubling when the Court itself first admitted the belated affidavit of Dr Gikonyo (submitted all of two years after the impeachment) and then dismissed it as being of no consequence to the proceedings and wondered why this evidence was not presented in the Senate two years ago when the application for adjournment was being made,” stated Kingi.

He argued that the High Court had failed to recognise that the Senate did not determine that an adjournment could not be granted, and the vote on the motion on the request for the adjournment was precisely on whether to grant the adjournment or not.

“The Senate, as the impeachment court, decided not to grant the adjournment request in the particular circumstances of the day because of the absence of evidence or good cause presented to it. This is standard practice for any judicial or quasi-judicial body. The Senate, like any other judicial or quasi-judicial body, including, for that matter, the High Court itself, only grants an adjournment on good reasons,” asserted Kingi.

Adding, “The discretion to grant an adjournment is not automatic. It must be exercised judiciously, balancing the right to a fair trial with the constitutional mandate to avoid unnecessary delays and dispose of cases judiciously.”

The Speaker also claimed that no Court, properly interpreting the Constitution, should find that the right to fair trial had been violated because an accused person has chosen to absent himself from his trial or any part of it, without providing sound reasons or evidence for that course of conduct.

“For these reasons, a key part of the appeal to be preferred by the Senate will centre on this plainly erroneous finding of the High Court. The declaratory order has no basis because Gachagua’s fair trial rights were not infringed. The order for constitutional damages of Sh 50 million to Gachagua, being predicated on the erroneous findings and declaratory Orders of the Court, will similarly be challenged,” he reiterated.

The Speaker added, “The Senate must do this, not for its own sake, but because it is the duty of every person under Article 3 of the Constitution to respect, uphold, and defend the Constitution.”