Former Law Society of Kenya (LSK) President Faith Odhiambo has raised fresh constitutional concerns over High Court’s decision upholding the impeachment of former Deputy President Rigathi Gachagua, questioning the consistency of remedies applied after the court found violations of his right to a fair hearing.
The three-judge bench ruled that the Senate violated Article 50 of the Constitution during the impeachment process by declining to grant an adjournment when Gachagua was unable to attend proceedings.
The court acknowledged the breach, issued a declaratory order, and awarded Ksh.50 million in constitutional damages. However, it ultimately upheld the impeachment outcome.
Odhiambo now argues that this dual outcome raises unresolved legal questions on whether a constitutional violation can be recognized and compensated without affecting the validity of the process in which it occurred.
“Yesterday's High Court judgment on the impeachment of H.E. Rigathi Gachagua raises serious and legitimate questions that our constitutional jurisprudence must grapple with honestly,” she said.
“The three-judge bench found that the Senate violated the former Deputy President's right to a fair hearing under Article 50… yet the bench ultimately upheld the impeachment itself.”
She adds that the core legal tension lies in how courts interpret remedies when fundamental rights are breached in proceedings that lead to removal from high public office.
“If the Senate's refusal to adjourn was a constitutional infirmity serious enough to warrant a finding of violation and a Ksh.50 million award, then the question that naturally follows is whether that infirmity was capable of tainting the entire removal process,” she noted.
“The right to a fair hearing is not procedural decoration. It is a substantive constitutional guarantee.”
Odhiambo further draws attention to the Supreme Court’s landmark 2017 presidential election ruling, in which the court nullified the election on grounds that constitutional and legal irregularities undermined the integrity of the entire process, regardless of the outcome.
“The court found that irregularities and illegalities in the transmission of results had compromised the integrity of the election… that a flawed process cannot produce a constitutionally valid outcome remains a pillar of our public law,” she said.
In her view, placing that precedent alongside the Gachagua impeachment ruling exposes a potential inconsistency in how courts approach violations within constitutional processes.
“In 2017, the violation of constitutional standards was sufficient to nullify the result entirely. Yesterday, a violation of the right to a fair hearing was found, remedied in damages but the result was preserved,” she observed.
“These are not necessarily irreconcilable positions, but the distinction must be clearly reasoned and transparently justified.”
Odhiambo warns that the decision could shape future impeachment proceedings if not carefully clarified, particularly on whether procedural breaches during Senate hearings can be cured through damages alone without affecting outcomes.
She further notes that the judgment underscores an urgent need for Parliament to enact a clear statutory framework under Article 150 to regulate the removal of a Deputy President, describing the current legal gap as a continuing constitutional weakness.
Ultimately, she cautions that Kenya’s constitutional order must ensure that the right to a fair hearing remains substantive and enforceable, particularly in high-stakes political and removal proceedings, rather than reduced to a compensable technicality.