Kingi Issues communication that Senate will appeal High Court ruling on Gachagua's impeachment

Added: 2026-06-10

[00:00:00]motion. Allow me to make the following communication.

[00:00:12]Honorable senators, I have the following communication to make. The communication relates to the judgment of the high court constitutional and human rights division at Nairobi constitutional petition number E565 of 2024 the honorable his excellency Gati Gashagua and 57 others versus the speaker of the national assembly the national assembly of Kenya the speaker of the senate the senate of Kenya and 23 others delivered yesterday the 8th of June 2026 six and extensively covered in the print and and electronic media since then.

[00:00:54]Honorable senator is senators, it is noted that from the onset that the speaker of the senate and the senate of Kenya were listed as the third and fourth respondents to this petition. To this end, the Senate was represented and participated fully in the conduct of the petition, culminating in the delivery of the judgment yesterday as a facade.

[00:01:20]From listening to the judgment and the media summary of the judgment issued by the court yesterday 8th of June 2026, it is clear that certain findings and final orders of the court with a respect to the conduct by the senate of the impeachment proceedings with respect to his excellency gashagua have been faulted in that judgment. Now, honorable senators, following the delivery of the judgment, we have been advised by council for the Senate that among the findings of the high court in the lengthy judgment delivered yesterday include the following finding and I quote, the right to a fair trial and article 47 and 50.

[00:02:02]We find that his excellency Gashaga's rights were infringed when the Senate declined to allow an adjunment. The violation constitutes both a a vindication of his rights and a recognition of the constitutional infirmity in the process but does not undo the impeachment itself given the finality of article 1457 and the constitutional absurdity that would arise from dual incumbency.

[00:02:30]Secondly, in his final orders, we have been advised by the high court. We have been advised that the high court has made the following orders and I quote, "A declaratory order is hereby issued that his excellency Gashagua's fear trial rights were infringed when the Senate declined to allow an adjunment in the impeachment proceeding despite his absence.

[00:02:56]The courts award constitutional damages of 50 million to his excellency Gashwa payable by the Senate to vindicate the constitution, restore the dignity of the affected party and deter future violations.

[00:03:11]Now, honorable senators, we have instructed our council to apply for certified copies of the proceedings and file a notice of appeal immediately.

[00:03:22]Even as we prepare for the appellet process, it is appropriate that certain matters be put on record to calm a restive public which is concerned about a judgment which portrays the Senate as an institution which sitting as a quasa judicial body failed to grant the former deputy president a fair hearing.

[00:03:44]The court folds the Senate as having infringed on the rights of the former deputy president by declining to allow an amendment without considering the circumstances and the contest the contest in which that determination was made. Although the courtside the Hansard of the of that day, it does not take due account of the series of events. The impeachment process had proceeded without incident and in the presence of the former deputy president until the last day when the Senate adjourned for lunch. The National Assembly had concluded had concluded including evidence in chief cross-examination and re-examination.

[00:04:27]The former deputy president and his council were made aware that his excellency Gashabua will take the stand on resumption after lunch.

[00:04:36]Upon resumption, senior council Paul Mu for the former deputy president first began by informing the Senate that he was not aware of his client's whereabouts, forcing the Senate to temporarily suspend the proceeding to allow Senior Council PU to establish the whereabouts of his client. Upon resumption, and that is after long wait, council stated that he had learned that his client had been taken ill. Notably, council did not make any effort, even when requested by the Senate, to provide any evidence to support his claim.

[00:05:16]However, the court determines that the Senate should nevertheless have allowed the adjunment request. In essence, the high court is telling this Senate that it had to allow an adjournment request that was not backed by any evidence to support a claim of illness or other reason for the unavailability of the former deputy president. This finding is even more troubling when the court itself first admitted a belated affidavit of Dr. Gono submitted two years after the impeachment and then dismitted dismissed it as being of no consequence to the proceedings and wondered why this evidence was not presented in the Senate two years ago when the application for an adjunment was being made. The court cites the speeches of some senators on the floor in debate as an acknowledgement by the Senate itself that the former deputy president was indeed ill, but ignores entirely the speech the speeches of those in debate who contended that to exercise the discretion to allow the adjunment, the Senate as the impeachment court had to be satisfied on evidence that the application was meritorious and was not only was not merely a tool to frustrate, delay, or altogether stop the impeachment process.

[00:06:39]As is well known, the speeches of individual senators in debate on the floor do not constitute decisions or determinations by the Senate. Now, honorable senators, the high court fails to recognize that the Senate did not determine that an adjunment could not be granted. Indeed, the vote on the motion on the request for an adjunment was precisely on whether to grant adjunment or not. The Senate as the impeachment court decided not to grant the adjournment request in this particular circumstances of the day because of the absence of evidence or good cause presented to it. This is standard practice for any judicial or quasi judicial body. The Senate like any other judicial or quasi judicial body including for that matter the high court itself only grants adjunment on good reasons. The discretion to grant an adjunment is not automatic. It must be exercised judiciously balancing the right to a fair trial with a constitutional mandate to avoid unnecessary delays and dispose of cases judiciously. In the matter at hand, it is probably true to say that no court in the circumstances the Senate found itself in with an application for an adjournment entirely devoid of any supporting evidence on its merits would have granted an adjournment. An applicant for an adjournment must provide conjunct, credible and convincing reasons why a trial should not proceed. The court gravely misdirects itself on the import of the rights of an accused person and article 50 of the constitution by failing to recognize the right to be present is a right of the accused person and not an obligation. An accused person who having had the evidence aduced against him and had an opportunity to challenge it in person or by advocate on cross-examination chooses without a good cause shown to absent himself from further proceedings whether with the aim of paralyzing proceedings or otherwise for any other reason cannot benefit from the provisions of article 50. No court properly interpreting the constitution should find that the right to fear trial has been violated because of an accused person has chosen to absent themselves from his trial or any part of it without providing sound reasons or evidence for that cause of conduct. For these reasons, a key part of the appeal to be preferred by the Senate will center on this plainly eronous finding of the high court. Honorable senators having reached the forgoing erroneous finding. The court then proceeds to issue orders that have recited above which the Senate will among other matters of fact and law also challenge be challenging in the court of appeal.

[00:09:37]The order for constitutional damages of Kenya shillings 50 million to his excellency Gashagua being predicated on erroneous findings and the glatory orders of the court will similarly be challenged. Honorable senators, the senate is fast to pledge fidelity to the supremac of the constitution and all the inbail principles of the rule of law and separation of powers. In similar vein, the Senate will robustly stand in defense of the constitution from der deroggation and violation from any quarter, not least the court of law. The Senate must do this not for its own sake but because it is the duty of every person and article 3 of the constitution to respect, uphold and defend the constitution. I thank you.

[00:10:27]Yes, majority leader