Inside Gachagua's legal battle for political career and reputation

This week will mark another round of legal battle by former Deputy President Rigathi Gachagua to save his political career and reputation after impeachment by Parliament.

Despite being taken ill, the Senate on October 17, 2024 voted to impeach Gachagua's as Deputy President.

But this vote opened fresh legal battle as the former DP  moved to court to challenge the validity of the Senate decision.

Five petitions were filed on Friday in various courts across the country by 32 individuals together with a lobby group, Sheria Mtaani, Kirinyaga MCA David Mathenge, lawyer Emmanuel Otieno, and two individuals, Eddie Waiguru and Victor Ngatia.

After evaluating the cases, Justice Mwita granted a temporary stay of Gachagua’s impeachment.

In a separate ruling, Kerugoya High Court, Judge Richard Mwongo barred Prof Kithure Kindiki from assuming the Deputy President’s office pending the hearing and determination of a case.

These two court orders marked a significant victory for Gachagua, allowing him to reclaim some of his political power while the legal battles continues. 

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The two orders have also given a lifeline to Gachagua to fight to retain his position in government and save his reputation.

In total, at least 36 cases that have so far been filed seeking to quash the impeachment of Gachagua and they will be heard from October 23 and 24, 2024.

In the last three weeks, the impeached DP has been in the corridors of justice fighting to reclaim his standing in the political arena.

Facing impeachment and legal hurdles, Gachagua embarked on a relentless quest to salvage his career, fortune, and reputation.

The situation drew intense public scrutiny and illuminated the intricate interplay between politics and law in the country.

It all began on October 1, 2024, when Kibwezi West MP Mwengi Mutuse filed an impeachment motion against Gachagua in the National Assembly.

Mutuse alleged that Gachagua had engaged in corrupt practices, including the misappropriation of public funds and abuse of office.

He accused the impeached DP of allegedly amassing wealth worth Sh5.2 billion since taking office in 2022, claiming this undermined public trust and the integrity of his office.

The MP claimed that Gachagua's actions compromised key governmental functions and accountability, warranting urgent investigation and impeachment to uphold the rule of law and ethical standards in public service.

Mutuse's motion got support from various political leaders and sparked debate in the National Assembly.

The motion sent shockwaves across the country, triggering a fierce court battle that would ultimately determine Gachagua's political future.  

The impeached DP, knowing that his political career was at stake, quickly mobilized a team of lawyers to mount a defense.

His defense team comprises of lawyers Paul Muite, Elisha Ongoya, Victor Swanya, and Ndegwa Njiru.

As the legal team collaborated to draft the first petition, more than eight petitions had been lodged in court by Gachagua's allies, led by former United Democratic Alliance (UDA) Secretary General Cleophas Malala and Denis Ndereva, a youth activist from Laikipia county.

The petitions were filed, in quick succession, to beat the deadline.

The petitioners sued Parliament and Speakers, Moses Wetangula (National Assembly) and Amason Kingi (Senate), seeking to bar impeachment of Gachagua.

They argued that Parliament, as currently constituted, is unconstitutional due to failure to meet the one-third gender rule.  

The petitioners filed cases in various courts across the country, including Milimani, Nyahururu, Nyeri, and Eldoret Law Courts; however, they were unable to secure conservatory orders to bar Parliament from acting on Gachagua’s impeachment motion.

In Malala's case, Justice Bahati Mwamuye of the Milimani Constitutional Court declined to grant interim orders to bar Gachagua’s impeachment but certified the case urgent.

After failing to obtain orders, Gachagua lodged his first petition on October 3 to stop his impeachment, claiming that there were no established procedures for DP's removal from office and insufficient public participation.

He asserted that Mutuse's motion was based on fiction and lies, portraying himself (DP) as a victim of political lynching.

In his 145-page petition, Gachagua claimed that some of the property listed in the motion belonged to his late brother, Nderitu Gachagua.

"I do not own Olive Gardens Hotel or Queens Gate Serviced Apartments. These properties belonged to my late brother, Nderitu Gachagua who appointed me as co-executor of his will. In accordance with the wishes expressed in his will, the two properties were sold and the proceeds distributed to his beneficiaries," the impeached DP stated in his court papers.

He also sought to halt the public participation that the National Assembly conducted on October 4, 2024.

The impeached DP argued that by the provisions of Article 138(2) of the Constitution of Kenya, an election of the President and the Deputy President is held in the 290 constituencies and the diaspora constituency and not in the 47 counties.

"Any exercise of public participation to alter the sovereign will of the 7,176,141 Kenyans who elected me should thus be held at the 290 constituencies and the diaspora constituency at which the sovereign will of the people in a presidential election was exercised," he argued.

On the evening of October 4, 2024, Gachagua’s prayers were declined after Justice Lawrence Mugambi only certified his case as urgent paving the way for impeachment hearing by the National Assembly.

Hours later several petitions were lodged primarily by civil society organisations led by Sheria Mutani, lawyers Shadrack Wambui, Sam Nyaberi, and John Jomo, and five other Kenyans Obuli Namenya, Kennedy Gachege, Denis Okumu, Simon Muchangi, Peter Kanene, and Caroline Wambui to halt the impeachment and public participation.

The petitions were assigned to Justices Chacha Mwita, Lawrence Mugambi, and Bahati Mwamuye.

Yet again, they also failed to secure orders from the Milimani High Court.

On Friday, October 5, 2024, as public participation was ongoing across the country, Kirinyaga Woman Rep Jane Njeri Maina, petitioned the Kerugoya High Court to halt the public participation in all 47 counties.

Justice Richard Mwongo ordered that a second round of public participation  be conducted at the constituency level but declined to bar the National Assembly from proceeding with the impeachment process.

In his decision, Justice Mwongo deemed the public participation at the county level insufficient and called for an expanded exercise to allow all Kenyans to express their opinions on the special motion.

On October 7, Gachagua, Malala, and other petitioners, for the second time, moved to court seeking orders to bar the National Assembly from impeaching the Deputy President.

This came after the National Assembly and Speaker Wetang’ula sought to have the 19 petitions that had been filed consolidated by the Principal Judge of the High Court, Chacha Mwita.

Unfortunately for Gachagua and his co-18 petitioners, the courts were swayed by the arguments presented by National Assembly and no orders were issued.

This culminated in Gachagua’s impeachment by the National Assembly on October 8, 2024.

Aggrieved by the decision, he lodged a second 57-page petition challenging the decision by the National Assembly to oust him and bar the Senate from upholding the resolution.

In the case, Gachagua alleged bribery, intimidation and manipulation within the National Assembly during his impeachment process.

The impeached DP's legal team, claimed that a Member of Parliament from the Rift Valley coordinated the bribery of colleagues to vote for his impeachment.

While Gachagua did not name the MP or disclose how much each received, he insists that many lawmakers were intimidated into compliance, creating an atmosphere of fear within Parliament.

"Many other Members of Parliament who have expressed solidarity with Gachagua have informed him that they were threatened and intimidated to vote for the motion, feeling helpless to resist under the circumstances. Others were reportedly offered financial inducements coordinated by a Member of Parliament from the North Rift,” Muite claimed.

The petition also reveals that, as part of the fear and intimidation campaign, several staff in the Office of the Deputy President were arrested and only enjoyed their freedom due to a court order secured just before the filing of the impeachment motion by Mutuse.

Gachagua said that during the National Assembly  impeachment hearing, majority of MPs appeared to be rallying around a different agenda than the one officially presented by Mutuse.

"The impeachment exercise was designed to please the President rather than examine constitutional violations,” he asserted.

Further, the former DP claimed that the public participation data purportedly gathered by the National Assembly to support his impeachment was doctored.

Gachagua cited Keiyo South constituency, where the reported data exceeded the mathematically possible threshold.

“Keiyo South data indicates a miraculous 162.78 per cent of people supported the impeachment motion, while only 6.98 per cent did not. This is clearly a fraudulent and fictitious entry,” he argued.

The impeached DP accused the National Assembly of allegedly designing the 'public views template' in the form of a charge sheet, offering only the accusations as options for informing the public's decision.

Justice Mwita declined to suspend the Senate impeachment trial stating that while the High Court has jurisdiction to hear and determine his petition, it cannot interfere with Parliament’s legislative authority.

"The court cannot injunct the Senate from carrying its constitutional mandate on impeaching the deputy president," Mwita ruled.

The Judge argued that although the Constitution grants the courts jurisdiction to intervene in cases of human rights violations, it must exercise restraint in matters of impeachment.

"There should be a delicate balance in the respective mandates of different arms of government. Courts should strive to achieve this balance and respect what Parliament is constitutionally required to fulfill," he said.

Justice Mwita explained that the Constitution has laid out the mechanisms through which governors, the president, and the deputy president can be impeached, noting that courts can only intervene in cases of outright constitutional violations.

Dissatisfied with the ruling, Gachagua’s lawyers approached a three-judge bench comprising of Justices Eric Ogola, Freda Mugambi, and Anthony Mrima and sought to halt the Senate impeachment trial.

However, time was not on their side. Despite their efforts, the judges declined the plea just 30 minutes before the scheduled Senate impeachment trial, rendering Gachagua's legal maneuvers ineffective.

This underscored the urgency Gachagua felt; time was of the essence in his fight to remain in office.

In their ruling, the three judges stated that the impeached DP had the opportunity to raise the issues he had presented before the court in the Senate.

“At the moment, we are being called upon to anticipate an outcome of a process that has not been completed,” said Justice Ogola. However, they noted that Gachagua could seek the court’s intervention in the event he was impeached.

The culmination of these efforts brought Gachagua to the Senate floor, where he faced his accusers in a politically charged atmosphere.

His appearance before the Senate on October 16, 2024 was marked by heightened emotions and intense scrutiny.

On October 17, 2024, when Gachagua was expected to present his case, he was taken ill in the afternoon and was admitted to Karen Hospital.

As a result, he was unable to defend himself against the 11 allegations leveled against him.

The Senate proceeded with the impeachment process without him or his lawyers, who walked out, stating they had no instructions from Gachagua.

The court fight is about personal survival; a testament to the broader struggles within Kenyan politics.

The impeachment motion and subsequent legal battles however exposed the deep divisions in the political landscape, revealing the complexities of governance, accountability, and the rule of law in Kenya.

As Gachagua continues to navigate the corridors of justice, the implications of his case will resonate beyond his personal situation.

His struggle has underscored the need for transparent political processes and highlighted the challenges faced by leaders in a system that often intertwines political maneuvering with judicial proceedings.