Tears or triumph: All eyes on court as Gachagua, Kindiki face final verdict

DP Kithure Kindiki with Rigathi Gachagua before he was impeached as the Deputy President. [File, Standard]

Former Deputy President Rigathi Gachagua or his successor, Kithure Kindiki, will today walk away with tears of joy or tears of loss, as the court seals either’s fate or grants them a fortune. Following a calamitous fallout with President William Ruto, Gachagua was hounded out of office by Members of Parliament, who accused him of tribalism over his shareholder politics and of undermining persons in authority, including Justice Esther Maina, whom he accused of illegally ordering the forfeiture of his Sh200 million.

After this, Kindiki was cleared by various agencies and ‘voted in’ by MPs into office in record time, hours, in what the government argues was efficiency.

Today, Justices Eric Ogola, Anthony Mrima and Freda Mugambi will determine who between Gachagua and Kindiki will walk away victorious. They will rule on whether Gachagua was properly impeached and whether his successor subsequently assumed office lawfully.

Gachagua dropped his bid to return to office and instead urged the court to order compensation for his full benefits.

While terming his 2024 impeachment as “malicious compliance” and placing the battle on Senate Speaker Amason Kingi, National Assembly Speaker Moses Wetang’ula, and his successor Prof. Kithure Kindiki, Rigathi said that he was no longer interested in being Kenya’s second-in-command.

Instead, his lawyers, Paul Muite, Elisha Ongoya, Tom Macharia, Faith Waigwa, John Njomo, Dudley Ochiel, Victor Swanya and Willis Echesa, told High Court judges Eric Ogola, Anthony Mrima and Freda Mugambi that they wanted the impeachment declared unconstitutional, quashed, and that Gachagua be awarded full benefits of a Deputy President.

At the same time, the court was urged to find that impeachment does not apply retrogressively, meaning it cannot apply backwards.

If the court agrees with Gachagua, taxpayers will face one of the most expensive constitutional blunders in Kenya’s history, as it could run into billions owing to the benefits attached to the Deputy President’s office. An estimate of a full five-year term indicates that the DP’s office costs about Sh16.5 billion.

Nevertheless, Gachagua is seeking Sh66.4 million in salary, airtime and gratuity.

He is also asking the court to grant him access to medical cover, pension benefits and a full package of a retired Deputy President, besides compensation for the alleged illegal removal.

Muite opened the submissions, detailing Gachagua’s dispute with both the National Assembly and the Senate and the subsequent appointment of his successor.

While painting a picture of a sheep in a court of hyenas, Muite said that the public was only told the National Assembly’s side, while Gachagua’s position was muted. He stated that both Wetang’ula and Kingi were beneficiaries and active players in the power-sharing deal, which he referred to as shareholding, and which was the reason MPs were baying for his blood.

The court heard that while Kenya Kwanza MPs pointed at alleged wrongdoing, there was a log in their own eyes, as all positions in government were shared in accordance with the agreement.

At the same time, the three judges heard that Prof. Kindiki was a signatory to the same document that Gachagua was allegedly drumming for through his shareholding rhetoric.

The lawyers first took issue with public participation. Muite said that, for example, in Nairobi, public participation was conducted by select Orange Democratic Movement (ODM) members who allegedly told the public it was by invitation only.

“The National Assembly conducted a public participation exercise on October 4 and 5; however, it was not meaningful,” argued Muite.

The senior lawyer questioned why the Senate and the lower house hurried to conclude the proceedings. Muite argued that there was a pre-determined result. “The third respondent convened a session of the Senate on October 8, 2024, which then passed a resolution that the plenary would consider the same. If a person is to be impeached, the Senate cannot bypass the committee,” he said, adding that the rules of natural justice required that Gachagua appear before a committee before the impeachment went to the floor.

The 10 days that the Senate granted itself, Muite argued, refer to the committee session. The senior lawyer also lamented that even the time allocation was biased against his client.

Retroactive question

He said that while Gachagua was given two years, the mover, Mwengi Mutuse, was granted three hours. At the same time, Muite argued that the Senate ought to have stopped the clock when the DCP leader was taken ill.

Instead, he said, Senators impeached him in five out of 11 counts. “This was an absolute failure for Parliament to address itself on the threshold of impeachment based on popular votes. In the Parliamentary system, MPs are entitled to kick the Prime Minister out of office for loss of confidence, while in the Presidential system, it is not the case that MPs can vote and christen their move as constitutional, but what they are doing is we have the numbers or a vote of no confidence,” said Muite.

According to Muite, impeachment is the last option in our system. He asserted that it was telling when MPs took upon themselves to be the jury and judges while Gachagua should have either been prosecuted or taken before the National Cohesion and Integration Commission (NCIC) for the offenses that he was impeached.

“Impeachment should be of the gravest of all grounds. The will of the people should not be on the flimsy of all grounds,” he said.

Muite started with the impeachment motion before the National Assembly. He argued that it was unconstitutional as there was no evidence, beyond doubt, that he had committed the offences. “Not each violation of the constitution amounts to gross violation of the constitution,” he said, adding that the charges must expressly state that it is gross and must have particulars.

The lawyer said that the charges were vague and unsubstantiated. He said that, for example, although the Court nullified laws criminalising criticism, five years before Gachagua was impeached, ground eight was anchored by the same law. “Whatever is alleged must be serious, substantial and weighty; there must be a nexus between the person charged and the particulars and charges must state with a degree of precision the Articles or sub-Articles and or any other law that had been grossly violated,” argued Muite.

At the same time, he said, Mutuse also anchored his claims against Gachagua on Nderitu Gachagua’s wealth.

According to Muite, although the MP said Gachagua had amassed Sh5.2 billion and had used 32 companies to acquire illicit wealth, there was no evidence to show the same. He termed the proceedings a theatre of hearsay, lies and mob justice, which went beyond Gachagua, to his family.

Muite stated it was designed in a way that the National Assembly would avoid accountability, while allowing the President to dangle the Vice Presidency. He said that the motion was driven by Parliament’s bias and hate.

Elisha Ongoya, also for Gachagua, argued that the process amounted to “malicious compliance”, likening it to predetermined trials in historical cases such as those of Sir Thomas More and Socrates.

He said the impeachment process was conducted only for formality, with outcomes already decided.

Ongoya also argued that impeachment charges resemble criminal proceedings and must meet strict evidentiary standards.

On Kindiki’s appointment, his lawyer Muthomi Thiankolu argued that he assumed office through a “sui generis” process.

He said Parliament effectively conducted an election, not an appointment. “My client ascended to his office through a sui-generis (in a class by itself) pathway. This event that occurred is not part of the routine and day-to-day function of parliament. That sui-generis function is an election by the National Assembly,” he claimed.

The Independent Electoral and Boundaries Commission (IEBC) told the court it had no commissioners at the time, but could function administratively. The case also featured arguments over the speed of Kindiki’s appointment, with Gachagua’s side claiming it was rushed.

Muite argued that the Constitution provides 74 days for replacing a Deputy President, and the process was completed in under 12 hours.

He said this violated constitutional safeguards and rendered Kindiki’s appointment invalid.

The Attorney General, through Dorcas Oduor and former AG Githu Muigai, urged the court not to interfere with parliamentary processes.

He argued that the court’s role is limited to determining whether rights were violated, not reviewing Parliament’s decisions. Githu said the court cannot sit as an appellate body over the National Assembly or Senate.

He added that parliamentary decisions are final and should be left to voters in future elections. He further argued that the word “may” in Article 145 of the Constitution is discretionary, not mandatory.

Githu likened Gachagua’s case to earlier constitutional disputes and insisted courts should not reopen parliamentary decisions on their merits. He concluded that the impeachment process followed constitutional procedure and should not be disturbed.