A Poisoned Tree,
A Permitted Fruit

On 8th June 2026, a three-judge bench of the High Court’s Constitutional and Human Rights Division delivered a long-awaited judgment on one of the most politically charged constitutional disputes in Kenya’s post-2010 history. The consolidated petitions challenged the removal of H.E. Rigathi Gachagua as Deputy President — 58 petitioners, ranging from ordinary citizens to elected officials, had asked the court to declare the impeachment unconstitutional and restore him to office.

The court declined.

But in declining, it did something far more remarkable — and far more troubling. It found that the Senate had violated H.E. Gachagua’s constitutional right to a fair trial, and then, in the same breath, held that this violation was not serious enough to undo the impeachment. As remedy, it awarded Ksh. 50 million in constitutional damages, payable by the Senate, and issued several declaratory orders.

The judgment has been described as “balanced” and “judicially restrained.” We respectfully disagree. The ruling is constitutionally incoherent in several critical respects, departs from established Kenyan constitutional jurisprudence, and in certain places manufactures doctrine with no clear precedent or textual foundation. This article examines where, in our considered view, the court fell into error.

The most glaring error in the judgment is what we shall call the poisoned tree doctrine in reverse.

The court found, unequivocally, that the Senate violated H.E. Gachagua’s right to a fair hearing under Articles 47 and 50 of the Constitution by declining to grant him an adjournment during the impeachment trial — a trial he was unable to attend due to hospitalisation. The court captured this finding in plain terms:

Under orthodox constitutional jurisprudence, this finding should have been the beginning of the end for the impeachment. The principle that an unlawful process cannot produce a lawful result is not merely academic — it is the foundational logic of judicial review. When a public body exercises power in breach of a constitutional right, courts do not ordinarily ask whether the outcome might have been identical had the right been respected. The inquiry ends at the breach.

The High Court, however, departed from this. It held that because Article 145(7) of the Constitution makes the Senate’s vote final and self-executing, the fair trial violation — however real — could not be used to undo the impeachment. The court reasoned that quashing the Senate’s resolution would create the constitutional absurdity of two sitting Deputy Presidents.

This reasoning, while superficially attractive, is fatally flawed. The court conflated constitutional finality — a procedural concept governing the effect of a valid Senate resolution — with constitutional validity, which concerns whether that resolution was reached lawfully in the first place. Article 145(7) was never designed as a shield behind which unconstitutional conduct could hide. To read it that way is to allow Parliament to immunise any impeachment from scrutiny simply by passing the final vote.

The second major error is the award of Ksh. 50 million in constitutional damages.

The court anchored this remedy in the well-established principle — drawn from Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR and comparative jurisprudence — that constitutional remedies should vindicate rights, restore dignity, and deter future violations. These are sound principles. The difficulty lies entirely in their application.

H.E. Gachagua was not denied a trading licence. He was not unlawfully detained for a weekend. He was stripped of the second-highest constitutional office in the land through a process the court itself found to be tainted. The consequence of that impeachment is permanent: under Article 75(3) of the Constitution, an impeached Deputy President is disqualified from holding any other State office. For life.

The court, by acknowledging the rights violation but leaving the impeachment intact, has effectively presided over the permanent extinguishment of H.E. Gachagua’s political rights through an unconstitutional process — and priced that extinguishment at Ksh. 50 million. This is not constitutional vindication. It is constitutional bargaining.

The court’s reference to Mr. Gitobu receiving Ksh. 15 million a decade ago, and the observation that an upward adjustment is warranted given the passage of time, reveals the deeper problem: the court treated this as a quantum exercise, calibrating damages for a rights violation the way one might assess damaged property. The violation of the right to hold high constitutional office — and the lifelong bar on future public service that follows — is not measurable in shillings. The appropriate remedy was nullification. Damages can supplement nullification; they cannot replace it.

Consider carefully what the court’s holding actually authorises going forward.

Future Senates now know, as a matter of settled High Court authority, that they may refuse adjournments to an absent impeachee, proceed with the trial, uphold the charges — and the only consequence will be a financial award paid not by the Senators personally, but out of public funds. The impeachment stands. The political goal is achieved. The cost is borne by the taxpayer.

Far from deterring future violations, the judgment has inadvertently created a roadmap for unconstitutional impeachment proceedings. The punitive deterrence the court invoked as justification for the damages award is, in practice, illusory. No future Senate will be deterred by a penalty it does not personally pay for an outcome it is allowed to keep.

The court was satisfied that the National Assembly conducted sufficient public participation in connection with the impeachment, and that the speed with which the vacancy was subsequently filled did not contravene the Constitution. This finding deserves careful scrutiny.

Articles 10 and 118 impose substantive obligations on Parliament to facilitate meaningful public participation. Kenyan courts have, over many years, developed a robust jurisprudence around this obligation: participation must be genuine, not performative, and the political urgency of a moment does not lower the constitutional threshold.

The pace at which the vacancy was filled — the gazettement of the Senate resolution, the nomination of H.E. Prof. Kindiki, and his approval by the National Assembly — raised genuine questions about whether the process was deliberately choreographed to foreclose any effective legal challenge before the vacancy was entrenched. The court’s abstract finding that acting “expeditiously” is not unconstitutional may be correct in principle. The question is whether expedition in this particular case served genuine constitutional purposes, or served to defeat them. The court appears to have accepted the speed of events without sufficiently interrogating that distinction.

There is a dimension of this case that received insufficient attention in the judgment: the permanent consequences of an impeachment under Kenya’s Constitution.

Article 75(3) provides that a person removed from State office on grounds of a constitutional violation or breach of oath is disqualified from holding any other State office. The impeachment of H.E. Gachagua — upheld on multiple constitutional grounds by the Senate — triggers this disqualification automatically. The lifelong bar on public service is not an incidental consequence; it is a core constitutional penalty.

By acknowledging the rights violation but refusing to nullify the impeachment, the court has allowed an unconstitutional process to impose a permanent constitutional disability on a citizen. The question before the court was not merely whether Gachagua should have remained Deputy President. It was whether a man whose trial was constitutionally tainted should be permanently barred from any future public office as a result of that tainted proceeding. The judgment does not engage with this dimension with the depth it demanded.

The court declined to make any findings on H.E. Gachagua’s entitlement to pension and retirement benefits under the Retirement Benefits (Deputy President and Designated State Officers) Act, holding that whether impeachment constitutes “retirement” within the meaning of the Act was not sufficiently argued before it.

While judicial restraint is ordinarily a virtue, this deferral leaves a significant constitutional question unresolved. A court empowered to grant “just and equitable” relief under Article 23 had both the jurisdiction and, we would argue, the responsibility to engage with this issue — at least to the extent of issuing directions on the appropriate forum and timeline. The bare direction that “the parties are at liberty to pursue the matter further” is cold comfort for someone whose political rights have been permanently foreclosed by the very proceedings before the court.

Intellectual honesty demands that we acknowledge where the court did not err.

The finding that impeachment proceedings are justiciable — rejecting arguments that they constitute a purely political question beyond judicial reach — is an important affirmation of constitutional accountability. Courts in the United States have treated impeachment as non-justiciable. Kenya’s constitutional framework, as the bench rightly observed, does not permit that avoidance.

The court’s engagement with the distinction between constitutional finality (Articles 144 and 145) and statutory finality (the County Governments Act) is intellectually honest and will be of significant value in future Governor removal cases. The mandatory order requiring Parliament to enact a dedicated statutory framework governing Deputy Presidential removal is also constructive and long overdue.

H.E. Gachagua has indicated his intention to appeal. In our assessment, there are compelling grounds on which the Court of Appeal could and should revisit the High Court’s refusal to nullify the impeachment — or at the very least, develop more coherent doctrine around the relationship between fair trial violations and the finality of parliamentary resolutions.

The central question the appellate court will need to grapple with is this: Does the constitutional finality of the Senate’s vote under Article 145(7) survive a finding that the vote was preceded by a constitutionally tainted process? We submit that a correct reading of Kenya’s constitutional architecture — rooted in the supremacy of the Constitution under Article 2, the obligation to give effect to fundamental rights under Article 20, and the remedial powers under Article 23 — compels a negative answer.

The finality of an impeachment vote, properly understood, is the finality of a vote that was conducted constitutionally. It is not a licence to immunise unconstitutional processes from review. The Senate is a constitutional institution — not a law unto itself.