The Gachagua Judgement – Constitutional Discretion or Indiscretion?
A. Introduction
On 8 June 2026 the High Court found that former Deputy President Rigathi Gachagua’s right to a fair hearing had been breached during his Senate trial and then, to the amazement of many and dashing hopes, declined to quash his removal.
For the many constitutional law commentators I follow on their X handles, this was an aberration in judicial thinking. The Constitution, they argued, had been sacrificed at the altar of an illogical judgment aimed at a pre-determined political end.
According to these lawyers (and they were many, I must admit) once the Court found that the Senate had breached Gachagua’s right to a fair hearing, which they characterised as a non-derogable right under the Constitution, invalidation of the impeachment was the only constitutionally available remedy.
Is that correct on a strict reading of the Constitution? In my view, the answer is not as straightforward as the many comments by lawyers on X suggest.
B. What the court held
In a 350-page judgement that was read in open court for about 8 hours, Justices Eric Ogolla, Anthony Mrima and Fridah Mugambi upheld the October 2024 impeachment, holding that Parliament acted within its mandate, that public participation was adequate, and that the constitutional threshold for removal was met. The Court nevertheless agreed with the Petitioners that Gachagua’s right to a fair hearing had been infringed when Senate proceeded with the impeachment vote despite being informed that he was hospitalised and unable to participate, and despite an adjournment request made on that ground by his counsel, Paul Muite SC, and his team.
The Court then made the finding that has generated the present controversy and that some critics have described as a slaughter of the Constitution and a retreat from the Court’s role as guardian of the Bill of Rights. It issued a declaratory order that his right to a fair-trial had been violated and awarded him KSh 50 million in damages against the Senate but declined the prayer to quash the Senate resolution, reasoning that invalidation would create constitutional complications and upheld the appointment of Deputy President Kithure Kindiki.
The finding of violation was, in effect, separated or delinked from the consequence that critics are arguing should have automatically followed from it. Critics have likened the finding of the Court to a Pontius Pilate judgment: the wrong is acknowledged, but the verdict it produced is allowed to stand.
The question this raises is as follows: given a proven breach of the right to a fair hearing in a removal process, did the Constitution leave the court any choice or room to manoeuvre or was setting the impeachment aside the only remedy available after the finding of such breach?
C. The orthodox case: a void act cannot be cured by damages.
The argument that invalidation was the only proper remedy rests on a chain of well-settled propositions in Kenyan public law.
First, impeachment is quasi-judicial, not purely political and the Court held this. In doing so, the Court agreed with the well settled principle in the Martin Nyaga Wambora v County Assembly of Embu & 37 others Civil Appeal No 194 of 2015, [2015] eKLR, where it was held that the removal of the Embu Governor by the County Assembly and Senate was amenable to judicial review precisely because the Houses were exercising an adjudicative function. A quasi-judicial body is bound by the rules of natural justice, including audi alteram partem (hear the other party).
Second, the long-standing position in common law, repeatedly affirmed by Kenyan courts, is that a decision reached in breach of natural justice is void and a nullity, not merely a flawed-but-valid act (see Ridge v Baldwin [1964] AC 40 (HL). On this view a tainted decision has no legal existence to “stand”. The appropriate remedy in such circumstances would be an order of certiorari, which removes the decision into the High Court and quashes it.
Third, and most pointedly, in Wambora, the Court of Appeal treated actual prejudice as irrelevant once a reasonable apprehension of bias had been established and the defect went to the fairness of the process itself. That holding reflects the maxim injuria sine damno, meaning where a fundamental right is violated, the violation is actionable in itself, and the claimant need not show that a fair process would have changed the result (see Ashby v White (1703) 92 ER 126; 2 Ld Raym 938).
Consequently, the critics argue, if the trial that produced the guilty findings was constitutionally unfair, one cannot logically declare the process unconstitutional while upholding the outcome the process generated. An award of damages, they argue, cannot validate a removal that was void from the moment the right to a fair hearing was breached.
D. Does the Court have discretion in respect of remedies under Article 23?
Article 23(3) of the Constitution provides that in any proceedings brought under Article 22 (Enforcement of Bill of Rights) the court “may grant appropriate relief, including”. These are then enumerated as a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of any law that violates the constitution or threatens fundamental freedoms, an order for compensation, and an order of judicial review.
The operative word here is may, not shall. The other important words to note are that relief must be appropriate. The word appropriate implies that the court must evaluate the context in which it is being invited to enforce rights. In my view, on a strict and literal reading, nothing in Article 23(3) states that a breach of the right to a fair hearing must result in the invalidation of the impugned act. The provision confers to the Court the discretion to award remedies that best fit the violation and its context.
The courts have repeatedly affirmed, most prominently in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KESC 34 (KLR), that Article 23(3) of the Constitution, read together with the purposive interpretation required in Article 259, empowers the Court to grant appropriate relief that is flexible, effective and, where the circumstances demand, innovative. In my opinion, following from the reasoning in Mitu-Bell, where the Court has upheld the substantive grounds for removal and a successor has already assumed office under a process the Court has found lawful, the Court may consider declaration and compensation to be the appropriate remedy. It did that and I agree with it.
It is not, as the critics argue, that setting aside was the only relief the Constitution permitted. I do however understand their position. Invalidation should ordinarily follow as the orthodox and arguably the more principled response to a proven breach of fair hearing in a quasi-judicial removal. On that view, the court’s finding of breach and subsequent award of damages sit in real tension with the Wambora “prejudice is irrelevant” line. But the circumstances here are different. The Court referred to a constitutional dilemma. An invalidation of the impeachment would have meant creating a constitutional crisis, since the country would suddenly, like in the days of the two Popes, one in Avignon and the other in Rome, have two Deputy Presidents, creating a real constitutional conundrum.
My own analysis would have ended with Mitu-Bell and the may and appropriate relief set out in Article 23 (3). As far as I was concerned, the remedial discretion in Article 23(3), read in that transformative light, was a complete answer to the critics, and there was little more to say.
But this morning I came across a post on Professor Sylvia Kang’ara’s X handle that made me pause. It read as follows:
“This life… Mkifika hapo kwa Hohfeldian jurisprudence and damnum absque injuria, turn the pages very fast. That said, the legal teams were exceptional. Our Constitution is not a one way street but a superhighway of normative balance. When the scales of justice stand, they should balance.”
The remark intrigued me, and I went back to read up on Hohfeldian jurisprudence and the principle of damnum absque injuria. I am glad I did, because the two ideas turn out to do far more than decorate the argument. They expose what the disagreement in the Gachagua case is really about.
E. Hohfeld and the anatomy of “the right”
Let me take up the first of Professor Kang’ara’s ideas: Hohfeldian jurisprudence. Hohfeld’s view was that the single word “right” hides several distinct ideas. One is a claim-right, my entitlement that you do something, which places a duty on you. Another is a power, the capacity to change someone’s legal position. Where one person holds such a power, the other is under a liability to have their position changed. And where the power is absent, that person instead enjoys an immunity, because nothing they hold can be altered.
In Gachagua’s case two of these are at work, and the “it had to be invalidated” argument treats them as one:
a) His right to a fair hearing is a claim-right. It placed a duty on the Senate to hear him properly. When that duty was breached, it gave rise to a remedy and the real dispute is what that remedy should be: compensation, or the undoing of his removal.
b) The impeachment itself is the exercise of a power: Parliament’s power to change his status from Deputy President to ordinary citizen. The question of whether the removal is valid is really a question about whether that power was lawfully used.
So the true issue is this: was a fair hearing a condition that had to be met before Parliament could use its power to remove him, or simply a duty it owed him while exercising a power it plainly had? For clarity, this can be broken down into two claims and framed as follows:
1. If a fair hearing was a precondition to the power, then once it was denied, Senate had no power to remove him at all. The removal would be a nullity, his right to remain in office would survive untouched, and only setting the impeachment aside could put things right. Damages would miss the point, because there would be no valid removal to compensate for; and
2. But if a fair hearing was only a duty owed alongside a power that Parliament genuinely had and otherwise used on proper grounds, then the breach gives him a right to a remedy, that of a declaration and damages, while the removal itself still stands.
The High Court took the second view; the critics take the first. And that is the whole point: the critics’ conclusion is not as obvious as it sounds. It rests entirely on a choice between these two characterisations. The view that invalidation was the only remedy is correct only if a fair hearing was a precondition to the power and wrong if it merely accompanied it. The Constitution clearly makes an opportunity to be heard part of the impeachment process. What it does not expressly settle is whether every breach of that requirement automatically nullifies a completed removal. My take is similar to that taken by the High Court. The fair hearing was a duty owed alongside Parliament’s power to impeach. The power to impeach having been exercised lawfully, the only remedy available is one in damages.
F. Damnum absque injuria
This brings me to Professor Kang’ara’s second idea. The maxim damnum absque injuria, meaning loss suffered without any legal wrong attaching to that loss.
Strictly speaking, Gachagua’s case is not a pure case of damnum absque injuria, because the Court found an injuria: a violation of the right to fair hearing. The real argument is narrower. It is that the damnum consisting in loss of office was not legally caused by that injuria, because the grounds for removal were otherwise established. Put differently, the judgment treats the fair-hearing breach as compensable but one that does not determine the outcome.
G. Conclusion
In conclusion, on a strict reading of the Constitution, the claim that invalidation was the only remedy available is overstated. Article 23(3) is, by its own terms, discretionary, and the list of remedies it gives is not exhaustive. It places compensation and a declaration of invalidity on the same menu, and tells the court to grant the relief that is appropriate. In my view, the text of Article 23 (3) does not lay down a single, automatic consequence for a breach of the right to a fair hearing.
That said, I do not think the critics are simply wrong, and I accept that their case is strong. In my understanding, their case is that a denial of the right to be heard in a quasi-judicial removal goes, on existing Kenyan authorities, to the validity of the removal itself and not merely to a side-claim for damages. And the Wambora line, which treats prejudice as irrelevant and quashing as the remedy, is directly on point.
Back to Hohfeld, if a fair hearing was a condition on Parliament’s power to impeach, then, in my opinion, awarding a declaration and damages did not vindicate the right at all. It simply put a price on the breach while leaving an unconstitutional removal standing.
So, as I see it, the decisive question is not “void or not void” nor “damages or quashing”. It is the earlier, characterisation question that Hohfeld helps us see clearly: was a fair hearing a condition on the power to impeach so that its breach is an injuria going to the outcome or was it merely a duty alongside the power, so that what Gachagua suffered is damnum absque injuria? The High Court answered in favour of the duty alongside the power. Wambora and the natural-justice “void” cases, to my mind, point toward the duty as a condition for the exercise of the power.
For now the question is what will the Court of Appeal be deciding when the appeals are lodged with it. And I doubt it will end there. Gachagua’s advocates have made it clear that they intend to appeal this judgment to the high heavens. So we now wait to see what the Court of Appeal will say, and, in all likelihood, what the Supreme Court will say after it. For now, the dilemma has been resolved one way. Whether it stays resolved that way is, in my opinion, a question for another day.
James Nyiha, 9th June 2026
