The Senate has moved to the Court of Appeal to challenge a High Court decision that found flaws in the impeachment proceedings against former Deputy President Rigathi Gachagua.
The appeal was filed by the Speaker of the Senate Amason Kingi and the Senate, challenging a judgment delivered on June 8, by a three-judge bench comprising Justices Eric Ogola, Dr. Fridah Mugambi and Anthony Mrima.
The High Court had found that Gachagua’s right to a fair hearing was violated after the Senate declined to grant him an adjournment during the impeachment proceedings.
The court subsequently awarded Gachagua Sh50 million in constitutional damages.
In its memorandum of appeal, the Senate argues that the High Court erred both in law and fact in determining that Gachagua had been denied a fair hearing.
The Senate maintained that it exercised its discretion lawfully and that Gachagua was given a reasonable opportunity to present his defence, including additional time sought by his lawyers.
The appellants argue that the High Court effectively interfered with the constitutional discretion vested in the Senate by substituting its own judgment for that of the legislative body when determining whether to grant the requested adjournment.
According to the Senate, the judges therefore “usurped the discretion conferred upon the 2nd Appellant” by the Constitution and applicable law.
The Senate has also challenged the High Court’s consideration of the illness cited as the reason for Gachagua’s absence from the proceedings.
The appellants argue that there was no evidence placed before the Senate at the material time to substantiate the alleged illness.
The Senate further argues that it should not have been faulted for proceeding after Gachagua failed to appear, “notwithstanding that the 2nd Appellant had afforded the 1st Respondent a reasonable opportunity to attend and be heard, including additional time granted at the request of his advocates and that the 2nd Appellant was under obligation to conclude the proceedings expeditiously.”
The Senate is asking the Court of Appeal to overturn the High Court’s declaration that Gachagua’s right to a fair hearing was violated.
It also wants the appellate court to set aside the Sh50 million award in constitutional damages.
The Deputy President is listed among the respondents, alongside other parties, while the Law Society of Kenya and the Ethics and Anti-Corruption Commission are among the interested parties in the appeal.
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