No appeal on merits: State insists former DP ouster not open to review by courts

Senior counsels Paul Muite and Prof Githu Muigai follow proceedings during the hearing of former Deputy President Rigathi Gachagua’s impeachment case at the ceremonial hall, Milimani Law Courts, Nairobi, on May 7, 2026. [David Gichuru, Standard]

The Attorney General on Thursday urged the High Court not to entertain a merit review plea filed by former Deputy President Rigathi Gachagua.

In her response, Attorney General Dorcas Oduor, through former Attorney General Prof Githu Muigai, argued that the court’s mandate is limited to determining whether Parliament breached the petitioner’s rights, and nothing more.

“Heavy weather was made by my learned friends of all manner of allegations relating to process, who was to bring the petition… All that is irrelevant. Only one thing stands: were his rights violated? My instructions are that there were no violations. That is a very narrow enquiry,” argued Prof Muigai.

He maintained that although the case is significant, the remedies sought by Gachagua are not available in law. According to him, the court cannot reopen proceedings of both the National Assembly and the Senate.

Prof Muigai said Gachagua’s case was akin to  “riding in high winds with no return”, arguing that the law provides finality to the Senate’s decision.

“He is asking you to sit as a court of appeal over the decisions of the National Assembly and the Senate. It cannot be reviewed or appealed on the merits,” he said.

He further cited precedent in the case involving former Nairobi Governor Mike Sonko, arguing that Senators are accountable to the electorate and not the courts. If Parliament acted wrongly, he said, voters should sanction them in the 2027 elections.

“You are between the devil and the deep sea. If there is a constitutional violation, your scrutiny must be enhanced, but if you find none, you must not take any further step, as that would amount to reviewing what Parliament did,” he added.

Prof Muigai also argued that the Senate has discretion under Article 145 of the Constitution to either refer an impeachment motion to a committee or resolve it in plenary. He emphasised that the use of the word “may” in the Article is permissive, not mandatory.

He noted that High Court Judges Eric Ogola, Anthony Mrima and Freda Mugambi had previously dismissed attempts to rely on historical context, affirming that constitutional interpretation must be grounded in the text.

According to him, the court is being invited on a “fishing expedition” to support Gachagua’s claims. He further argued that the Supreme Court, in the Sonko case, did not find that failure to form a committee was fatal to impeachment proceedings.

Prof Muigai likened Gachagua’s case to the impeachment of former US federal judge Justice Nixon, noting that Congress followed a committee process before a two-thirds vote removed him from office.