Gachagua's appeal: Judges gave an illogical, impracticable or artificial verdict

Former Deputy President Gachagua has moved to the Court of Appeal to challenge the impeachment verdict by the High Court.

Gachagua has questioned the authenticity, logic and practicability of what judges Eric Ogola, Anthony Mrima and Freda Mugambi read to the public as their final verdict.

He claims that large chunks of what was read in public were missing from the judgment supplied by the trio. The DCP leader alleges that the Bench headed by Ogola deleted the parts on the violation of his rights.

He cited portions after paragraphs 484, 488, 503 and 508 among those that he identified as missing but having a critical ramification on the final verdict.

Gachagua says in paragraph 484, Justice Mrima had said that he was entitled to remedies for the violation of his rights.

“In this present case and against this background and having found that the rights of H.E Gachagua were infringed. It is our considered position that declaratory relief and reasonable damages ought to be granted, not only to address the injuries suffered but also to vindicate the Constitution and deter future violations. We now turn to examine the efficacy of the other reliefs,” Gachagua quotes Mrima.

However, he claims the final document sent to parties was disjointed as it had been deleted. He insists that it was now impossible to find or arrive at the conclusion that he was illegally impeached following this omission.

Further, Gachagua says the court had also left out from the judgment his wish not to be reinstated. While Justice Mrima publicly read this out, he claims he could not put a finger on this part in the written document.

“The omission therefore affected the completeness of the Court’s reasoning on a specific relief sought, although the Petitioner had expressly abandoned the said relief,” court papers read.

Gachagua also raises an issue with the alleged deletion of the part that distinguished the removal of a Deputy President from that of a governor. He says the judges, during their televised session, addressed the interpretation of Articles 144, 145 and 181 of the Constitution, and how the removal process of county governors could apply to presidential or deputy presidential impeachment proceedings.

“The omission therefore removed important constitutional analysis relevant to the Court’s treatment of applicable precedent and the legal framework governing impeachment proceedings,” he says, adding that the court also omitted the subsequent reasoning on whether an impeached person could return to office if the court invalidated the exercise.

He also points out that the citation format during the reading was in short form, while the written one had the full citation. Gachagua claims there were minor differences in certain statements and inaccuracies which had been identified in the read document as opposed to the written one.

Justice Ogola had claimed that the difference in pagination was caused by differences in font size.  However, Gachagua insists that the court’s reasoning was hanging, hence unclear on the final verdict.

Gachagua also faults the lower court for not finding that there was no evidence to show that National Assembly Speaker Moses Wetang’ula had a conflict of interest as he sat as a Kenya Kwanza principal. He said there was a bias from the Speaker which the judges turned a blind eye to.

In his appeal, to be argued by lawyers Paul Muite, Elisha Ongoya, Tom Macharia, Faith Waigwa, Ochiel Dudley, Willis Echessa, Swanya Victor Ogeto and John Njomo, he asserts that the court should have declared the impeachment proceedings unconstitutional and quashed them, as courts had done earlier.

Gachagua says it was strange for the court to order compensation while clearly adopting findings by higher courts that Parliament’s violation of its own regulations and the Constitution resulted in a nullity.

“The High Court fundamentally erred in law by failing to find that the Senate’s decision to impeach the Appellant was null and void on the basis of the court’s own firm determination that the Appellant was not subjected to a lawful and fair trial process within the meaning of Articles 25(c), 47 and 50 of the Constitution,” he argues.

He also cites a departure from the Supreme Court’s judgment in former Nairobi Governor Mike Sonko’s impeachment case, in which the court had powers to review processes that did not comply with the law.

Gachagua also wants the Court of Appeal to reopen the National Assembly and Senate’s decisions and assess the weight of the claims by his accuser, Kibwezi West MP Mwengi Mutuse, and his (Gachagua’s) response against the law and Constitution to establish whether they had the weight to oust him.

In the case, Gachagua argued that Mutuse had no evidence to show that he could even hurt a fly. In their final submissions his lawyer said a scrutiny of the Hansard would show that Mutuse relied on unsubstantiated claims to support his impeachment.