By Mwibanda
The Constitutional Framework
Articles 145 and 150 of Kenya’s Constitution lay out the process for impeaching a President or Deputy President. Once both the National Assembly and Senate approve an impeachment, the office falls vacant. That vacancy stands unless overturned by a court of law — and even then, only on constitutional or procedural grounds.
In the case of Deputy President Rigathi Gachagua, if Parliament impeached him and the action has not been reversed by a competent court, the impeachment remains valid. The legality of his continued tenure, therefore, rests entirely on judicial interpretation.
Judicial Intricacies: High Court vs. Court of Appeal
The High Court reportedly intervened, possibly questioning the constitutionality or procedural fairness of the impeachment and ordering Gachagua’s reinstatement. However, the Court of Appeal later overturned that ruling — not based on the merits, but on a technicality.
According to the appellate bench, the High Court was improperly constituted. The Deputy Chief Justice, who had empaneled the judges, allegedly did so without constitutional authority. As a result, the entire ruling was set aside.
This creates a unique legal vacuum:
Did the High Court have jurisdiction to make the ruling in the first place?
With the Court of Appeal declining to rule on the substance, is there now a valid judgment upholding Gachagua’s reinstatement?
Or does the absence of a standing court order mean the parliamentary impeachment still holds?
The Vacuum and the Way Forward
The result is a state of constitutional ambiguity. Gachagua’s political allies may claim judicial exoneration, while critics argue he remains lawfully impeached. Neither side can point to a definitive legal position — because none currently exists.
Unless the Supreme Court steps in, the country is left navigating a dangerous grey zone: a Deputy President simultaneously impeached by Parliament and reinstated by a court whose decision no longer stands.
Kenya’s constitutional architecture was designed to prevent precisely this kind of paralysis. And yet, here we are — watching a legal lacuna turn into a national dilemma.
