The Gachagua Judgement Revisited:
One Right or Two?
Introduction
In my first article on this judgment, I asked a single question. Once the High Court had found that Gachagua’s right to a fair hearing was breached, was invalidation of the impeachment the only remedy left to it? I thought not. My answer rested on Article 23(3) and the discretion it gives the court, which I read together with the Mitu-Bell case. To that I added a distinction I had borrowed from Hohfeld after reading Professor Kangara’s post on her X handle. Was a fair hearing a condition that had to be satisfied before Parliament could impeach? Or was it a duty the Senate owed Gachagua while exercising a power it undoubtedly had? I opined that in the impeachment process, fair hearing was not a pre-condition for the exercise of the power of impeachment but a duty owed to the person being impeached. I consequently agreed with the court that an award of damages to Gachagua was the correct decision in the circumstances.
Two things have since changed my mind or at least troubled it. The full judgment is now out, all 286 pages of it (whilst reading the judgement, the judges said it was 350 pages long but what was uploaded is 286 pages), and it is worth reading. And my son Adrian, a lecturer of Jurisprudence and the History of Ideas at Strathmore Law School, sent me a critique I have not been able to shake off. He does not tell me I was wrong. He says that the right to a fair hearing is not one right at all. It is two. Having sat with both the judgment and his argument, I think he is onto something the rest of us, the Court included, walked straight past. So this piece is a continuation of the first, written with rather less certainty than I signed off with last time.
What the full judgment actually said
Before theorising, it helps to be accurate about what the Court actually said, because a fair amount of the commentary (vile and not so vile) I have seen proceeds without having read the judgment.
Ogolla, Mrima and Mugambi JJ began by dismissing the proposition that an impeachment is a political question and courts do not have jurisdiction to adjudicate such questions. The Constitution, they said, leaves no corner of public power immune from accountability.
Having found that they had the requisite jurisdiction, the Learned Judges sided with Parliament on the majority of the grounds of objection that Gachagua had raised but on one point, though, they found against the Senate. The Senate had agreed to try the matter as a full adversarial hearing, with witnesses and cross-examination. Then, at the very moment Gachagua was due to take the stand as his own witness, it changed course and pressed on without him. His illness had been announced on the floor of the House. An adjournment was available, even within the tight constitutional timetable, right up to the last permitted day. The Senate refused it anyway. That, the Court held, wrecked the equality of arms between the two sides and breached Articles 47 and 50. The language the judges chose was not mild. They called the refusal of an adjournment a course of conduct that was going to occasion a miscarriage of justice. To quote the court – “had it (Senate) directed its mind to the miscarriage of justice that its refusal was plainly going to occasion, this was a case in which the circumstances unambiguously called for an adjournment to be granted at least to the next day.”
Despite the foregoing finding, the Judges refused to quash the impeachment. Their first reason was the finality that Article 145 (7) ascribes to a completed impeachment. Their second reason was practical, and grave. To quash would have brought Gachagua back into an office that Kindiki, lawfully sworn in under Article 149, already occupied.
The Judges said “we find that H.E. Gachagua’s rights were infringed when the Senate declined to allow an adjournment. This violation constitutes both 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 145(7) and the constitutional absurdity that would arise from dual incumbency.”.
If there were to be two Deputy Presidents, the court opined, one would be “by judicial fiat” and the other “through a constitutional process”. A court, the judges reminded themselves, must never be the author of a constitutional crisis. So they kept the peace.
This reasoning gives rise to two issues. The first is that the Court did not flinch from naming the difficulty it was in. At paragraph 503 it called it “the doctrine of constitutional dilemma”, which according to the Court, emerges from the tension between the finality of an impeachment and the duty to vindicate a person’s rights. The Judges pointed out that the Americans sidestep this tension altogether by treating impeachment as non-justiciable. That escape route, the Court held, is not open to us under our Constitution. The Judges then went as far as to say that the dilemma may, in the end, only be cured by amending the Constitution itself.
The second issue is how the Judges approached the question of remedy, and what the damages or compensation they awarded were meant to achieve. Leaning on the Gitobu Imanyara[1] case and the line of cases on damages as vindication for breach of rights, the Judges made a declaration and awarded Gachagua the sum of Kenya Fifty Million (Kshs. 50,000,000/-) as damages. The Judges were at pains and indeed went to some length to explain that this sum was a “vindication of breached rights” and not for the office Gachagua had lost. It was, in the Court’s own words, for “a higher constitutional purpose, to vindicate the supremacy of the Constitution, restore his dignity, and deter similar infractions in future impeachment proceedings”.
That word, “dignity”, is where Adrian’s argument begins. The Court used it and used it deliberately. But it never explained why a breach of a fair hearing should be answered by restoring a man’s dignity with monetary compensation rather than by undoing the wrong that was done to him.
Adrian’s critique: that subjective rights rest on real rights
Adrian’s starting point is that my Hohfeld arguments, helpful as far as they go, stop too soon. A subjective right is a right a person can claim. It only becomes interesting once you ask why he can claim it. And the answer, Adrian says, is that behind every subjective right that a person can claim sits a “real right”. We can claim things from one another because things are genuinely owed to us. There are concrete goods that are meant to end up in a person’s hands, or to be left where they already are. A debt that is meant to be repaid to him, property that is meant to be returned to him, a thing he already holds that is meant to stay his. The right to claim is simply the recognition, in law, of a good that is already his to begin with. Petar Popović, the philosopher Adrian draws on, calls these real rights “juridical goods”.[2]
If that is right, then the question about Gachagua is not just whether he held a claim-right. It is what “real thing” the rules of natural justice are there to protect. Adrian’s answer is that anybody sitting in judgment or anybody whose job is to work out what is owed to whom, takes on a duty to “assume a stance of justice”. Understood from a natural law point of view, this is the principle of ius suum cuique tribuere, the giving to each person of what is due to him. That stance must open itself to the whole of the situation in front of it. That means hearing the evidence of everyone with a stake in it, so that it can see what is owed and to whom. It must put itself in a position to judge justly.
That single duty, Adrian points out, is owed for two quite different reasons which then brings about the concept of two different rights, both hiding inside the one phrase we refer to as “the right to a fair hearing”.
The first right is owed to the person himself. A body sitting in judgment has to regard the accused person justly, which means seeing him as a member of the society and a sharer in its common good, someone whose flourishing or suffering the body is bound to take seriously. The opposite of this is to look at him through a partisan eye, as though he stood outside the community, as someone whose good simply does not count when the society decides how to act. Seen rightly, the accused is entitled to be regarded properly whatever the likely outcome of his case. Letting him speak has worth even where he has no defence to offer or anything meaningful to say. He belongs to the social order and is able to take a position within it, and he ought to be given the chance to do that in public. If there is nothing else for him to say, he can at least own his wrong by pleading guilty – but give him his day in Court.
The second right is owed to something else entirely. It is owed not to the man but to the truth of his case. To see why, it helps to recall what an act of judgment actually is. On the natural law account, to adjudicate is to render to each person what is due to him, and a thing cannot be rendered as due until it has first been correctly identified. Justice, in other words, presupposes truth. A judge cannot give a man his due until the judge has first established what that due actually is, and that establishment depends on the facts. This is why Aristotle and St Thomas Aquinas treated the finding of truth not as a courtesy extended to the parties but as something built into the very nature of judging.[3] A judgment reached without regard for the facts is not a harsh judgment or an incomplete one. It is not really a judgment at all, because it has skipped the step that makes adjudication what it is.
It is from this that the duty to hear both sides takes on its second meaning. Audi alteram partem is usually defended as a protection for the person, and so it is. But it is also, and independently, a discipline imposed on the judge for the sake of getting the answer right. The judge must hear both sides, and observe the other rules of natural justice, partly because one side may hold a single fact that changes what justice actually requires. A man who is silenced may have been carrying the very thing that would have altered the outcome, and the tribunal that refused to hear him will never know whether he carried that very thing that would have altered the outcome or not. That is the danger this right guards against.
Therefore, the openness at stake here is of a different order from the first. It is not openness to the person as a member of society, owed to him because of his standing and his dignity. It is openness to the circumstances he stands in, owed to the truth of the matter, so that what is genuinely due to him, and to the other side, can be seen for what it is. The first right looks at the person. The second looks past him, to the facts of his situation, and asks whether the tribunal has equipped itself to find them
The two rights can, however, be separated. The first does not depend on the second.
The question then becomes this. When a man is denied a hearing, which of the two rights is broken? The answer is that it depends entirely on what he was prevented from saying.
Take the case where the silenced party might have known something capable of changing the result. Here both rights are broken at once. His dignity is injured, because he was not heard, and the truth of the case is put at risk, because the very fact that might have altered the outcome never reached the tribunal.
Now take the opposite case. Suppose there was nothing he could have said that would have made any difference, because the outcome was already settled beyond doubt on other grounds. Here the second right is not touched at all, since hearing him could not have changed anything. And yet the first right is still broken. He was condemned without being heard, and that wrong stands on its own, whatever his silence did or did not cost him.
It follows that the two rights, are, therefore, in truth separate. The first does not depend on the second. A man can be wronged by not being heard even where his being heard would have changed nothing.
Reading the judgment through the two rights
Once the right is split in this way, into one part that protects the person and another that protects the outcome, the judgment reads far better than its own reasoning suggests. And my earlier conclusion, as it turns out, rests on firmer ground than I had managed to give it.
Start with how Adrian says the first right should be repaired once it is broken. The wrong must be acknowledged. When a body deciding a matter of national prominence regards a man as though he were outside the common good, or fails to regard him properly at all, that colours the way the whole country sees him, and if the regard was false then the falseness must be stated out loud.
That, says Adrian, is what a declaration does. Beyond saying it, something must be given to the man to make the wrong good, which is itself part of acknowledging it. That is what compensation is for, both for the wrong and for whatever hardship it brought him. It might be money, depending on what he went through. But it need not be. Adrian points to the Inter-American Commission and Court, whose remedies have run to such things as monuments and the retraining of officials so the same wrong is not done twice.
Now hold that next to what the Court granted. It made a declaration recognising the breach. It awarded damages and went out of its way to say they were not payment for the lost office. What were they for, then? To restore the man’s dignity in the first place. And, looking past him, to defend the Constitution itself and put the next would-be violator on notice. That is almost exactly the remedy Adrian’s first right asks for. Without the language of real rights, perhaps without quite knowing it, the Court did precisely what the recognition right demands. So, the declaration and the damages are not some consolation prizes handed over because quashing had become awkward. They are the right and complete answer to the wrong that was done. To that extent my first article stands and stands for a better reason than I gave for it.
The question the Court did not ask
But there is still the second right to account for. This is where Adrian’s argument hits hardest, and where I have to be more careful than I was the first time round.
His submission is this. A decision taken in breach of natural justice ought to be void, or open to being voided, only if respecting the rules could conceivably have produced a different decision. He is careful about what this test is not. It is not a question of “actual harm”, which would ask whether the outcome really would have changed. Nor is it the Wambora test of “reasonably possible bias”, under which a tainted tribunal falls whether or not anyone was in fact prejudiced.
What Adrian proposes sits between the two. He calls it “reasonably possible harm”, and the question it puts is whether hearing the party could realistically have made a difference to what justice required. He adds one caveat. Even when the answer to that is yes, voiding the decision does not follow on its own, because other things still have to be weighed in the balance.
That test, to my mind, is the real hinge of the Gachagua case. And it is the very question the High Court never put to itself. Having found that the first right, the one protecting Gachagua’s dignity, had been breached, the Judges turned at once to the cost of quashing the impeachment. Two worries drove them. The first was finality under Article 145(7): an impeachment, once completed, is meant to be the end of the matter. The second was the prospect of two Deputy Presidents holding office at the same time, one restored by the court and the other already sworn in. Faced with these, the Judges resolved the dilemma in favour of keeping the State stable.
But there was a prior question they never paused to ask. Before weighing the cost of quashing, they ought to have asked whether the breach went to the outcome at all. Put simply: could the evidence Gachagua was prevented from giving conceivably have changed the way the Senate voted?
Here the judgment seems to me to contradict itself, and I did not see it before the critique.
Let me set out the two possibilities.
The first is that the breach injured only the first right, the one about Gachagua’s dignity. On this view, nothing he could have said in his own defence would have made any difference to the result. The case against him had already been proved on other grounds, and proved heavily. If that is what happened, then the declaration and the damages were not just one option open to the Court. They were the correct answer, and nothing more was needed. All those pages in which the Court agonised over a looming constitutional crisis were then unnecessary, because there was never any real prospect of undoing the impeachment. And if this is the right reading, then my first article was correct, and correct for a clean and simple reason.
The difficulty is that the Court did not say this. It said something else. It said the refusal to hear Gachagua was “plainly going to occasion a miscarriage of justice.” Those words belong to the second right, not the first. They refer to the soundness of the outcome itself. To say that a miscarriage of justice was in the offing is to say that the result might have been wrong, and that hearing Gachagua might have put it right. The Court’s own language therefore suggests that the second right, the one that protects the correctness of the result, was also in play.
And if the second right was in play, the picture changes completely. On Adrian’s test, voidability was then a real possibility. The refusal to quash was no longer a finding that the breach could have changed nothing. It became something quite different. It became a decision to let the need for stability outweigh a breach that might well have changed everything.
So which of the two readings is correct? As far as I can tell, the judgment does not say or guide us on where to look. Each reading can therefore be defended on its own. What cannot be defended is blurring the two together, because they do not end up in the same place. On the first reading, the outcome calls for no apology from anyone. On the second, the outcome is a defensible but far more troubling thing, a decision to place stability above a right that may have gone to the very justice of the verdict. And if the second reading is the true one, then the critics I thought I had answered in my first article are not so easily put to rest.
Conclusion
I started the first article sure that Article 23 (3) and its discretion disposed of the critics. I finish this one less sure of myself, and I have come round to thinking that is the right place to be.
I still hold that invalidation was not the only remedy the Constitution allowed, and that the Court was right to answer the wrong to Gachagua’s dignity with a declaration and damages. On that first right the Court did not merely have the power to act as it did. It did what principle required of it. What I had missed is that this settles only half the case. A second right was in play, and whether it was breached depends on whether hearing Gachagua might realistically have altered the outcome. The Court neither asked nor answered that question. And given its own talk of a miscarriage of justice, I am no longer comfortable assuming the answer is no.
So the question in my mind is no longer the one I put last time. Last time I asked whether a fair hearing was a condition that had to be met before Parliament could impeach, or merely a duty the Senate owed Gachagua while using a power it already had. Adrian’s argument shows that this was the wrong place to start. There is an earlier and more fundamental question to be answered first. Of the two rights that live inside the right to a fair hearing, which one was actually breached here? Was it only the dignity right, the right to be heard as a member of the society regardless of the result? Or was it also the truth right, the right to have the outcome itself be correct? And if it was the truth right, even as a possibility, then a further question follows. Are finality and the fear of instability really weighty enough to deny Gachagua the only remedy that would have made a difference to him, namely the setting aside of his removal? That, in my view, is the work now waiting for the Court of Appeal, and after it, almost certainly, for the Supreme Court.
Let me end by giving the judgment its due. It was the first of its kind. It had the courage to name the constitutional dilemma openly, rather than hiding behind the political question doctrine and simply refusing to hear the matter, which is the route the American courts would have taken. The result the Court arrived at is one I am able to defend, now more or less.
What the Court did not do was take the right it had found to be breached and separate it into its parts. That separation is Adrian’s achievement, not mine. If the appellate courts take it up, this case could leave behind something more lasting than the fate of one Deputy President. It could give us a clear account of the difference between an unfair hearing that only wounds a person’s dignity and one that actually corrupts the result. And with it would come an understanding of the rare case in which the only honest course is to undo what was done.
James Nyiha, 12 June 2026. I am indebted to Adrian Nyiha, lecturer Strathmore Law School, whose critique forms the heart of this article.
[1]Gitobu Imanyara & 2 others v Attorney General [2013] eKLR, where constitutional (vindicatory) damages were awarded for the violation of fundamental rights. The High Court noted that the passage of time since that award justified an upward adjustment.
[2]Petar Popović, Natural Law and Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory.
[3] Aristotle, Nicomachean Ethics, Book V, especially the discussion of corrective justice and the judge as living justice and that to go to the judge is to go to justice personified and also Thomas Aquinas, Summa Theologiae, II-II, q. 60, on judgment (de iudicio). At article 1 Aquinas defines judgment as the right determination of what is just, recta determinatio eius quod est iustum.
