By AMOS MUOKI 

The three-judge bench ruling of June 8, 2026, is a landmark judgment that will shape Kenya’s constitutional law for years to come. However, like any complex judicial decision, it is not beyond reproach. 

While the court deserves credit for courageously navigating a politically explosive dispute and for holding the Senate accountable through a damages award, several aspects of the ruling raise serious legal and practical concerns. 

Below is a balanced critique organized under key thematic headings. It is worth noting that this is the first bench to adjudicate on matters of impeachment of a Deputy President of the Republic of Kenya.

The contradiction at the heart of the judgment

The most glaring flaw in the ruling is its internal inconsistency. On one hand, the court found that the Senate violated Gachagua’s right to a fair hearing under Articles 47 and 50 of the Constitution. On the other hand, it upheld the impeachment as substantially constitutional and refused to nullify the removal. This creates a logical paradox: if a fair hearing is a fundamental component of any valid impeachment process, how can a process that violated that right still be deemed constitutional? 

The court appeared to separate the violation from the outcome, essentially saying that Gachagua was treated unfairly but that unfairness did not affect the validity of his removal. Once a violation of the rights of a litigant has been proved, the corresponding remedy should be a nullification of the impeachment pursuant to Article 23 of  the Constitution of Kenya.

The remedy was inadequate for the harm suffered

This remedy stems from the provision of Article 23(e) of the Constitution of Kenya. The award of KSh 50 million in constitutional damages against the Senate sounds significant in the abstract, but when measured against the gravity of what Gachagua lost the office of Deputy President, its salary, privileges, political platform, and future career prospects, the sum appears disproportionately small. 

Constitutional damages are meant to vindicate rights and deter future violations, not merely to compensate for pecuniary loss. Gachagua lost an office that carries immense public trust and political power. No amount of money can restore that, but a more substantial award (or a different remedy, such as a declaration that the impeachment was void ab initio) would have sent a stronger signal.

Furthermore, the damages were awarded only against the Senate, not against the National Assembly or individual lawmakers who may have acted in bad faith. This narrow targeting lets other institutional actors off the hook.

The court avoided grappling with political reality

Throughout the ruling, the judges repeatedly stated that there was no evidence of bias or pre-determination by lawmakers. With respect, this finding strains credulity given the publicly documented record: the impeachment motion was tabled by allies of President William Ruto, debated at an extraordinary spet5ed, and passed by a lopsided majority of 281 to 44 in the National Assembly. 

Gachagua himself described the process as a “political lynching,” a view shared by many legal observers and ordinary Kenyans. While the court correctly noted that impeachment is a political-constitutional process where lawmakers are entitled to political opinions, the threshold for bias should not be so high as to be practically unreachable. 

The ruling effectively immunizes Parliament from any claim of political bias, even in cases where the outcome is a foregone conclusion. A more realistic standard such as whether a reasonable observer would apprehend bias might have yielded a different finding.

The directive to Parliament is weak and unenforceable

The court ordered Parliament to enact a dedicated legal framework to govern future impeachments of deputy presidents. With the absence of an impeachment legal framework, the question remains which framework was used to impeach the petitioner. The use of Article 144 and 145 of the Constitution of Kenya without modification as provided for under Article 150(2) of the Constitution is unconstitutional and should have rendered the whole impeachment process null and void. 

This is commendable in principle, but as a judicial remedy, it suffers from two weaknesses. First, the court set no clear deadline for compliance, nor did it specify what would happen if Parliament ignored the directive.

Second, courts in Kenya have a poor track record of compelling the legislature to act; previous directives on matters such as gender quotas and IEBC reform remain unimplemented years later. 

Without a specific timeline or a mechanism for judicial review of parliamentary inaction, this part of the ruling is likely to become a mere exhortation rather than an enforceable order. The court could have adopted a stronger approach, such as issuing a mandatory injunction with a fixed deadline and retention of jurisdiction to oversee compliance.

The court missed an opportunity to define “gross violation”

One of the grounds on which Hon Gachagua was impeached was “gross violation of the Constitution,” yet the court did not take the opportunity to define this term with precision. Instead, the ruling largely deferred to Parliament’s interpretation. This is problematic because “gross violation” is a vague, open-textured phrase that could be abused in future impeachments. 

Without clear judicial guidance, future majorities in the National Assembly and Senate might stretch the term to cover routine policy disagreements or minor infractions. A more robust ruling would have articulated objective criteria for example, that a gross violation must involve deliberate, serious, and manifestly illegal conduct, not mere administrative errors or political differences. By declining to do so, the court has left a dangerous ambiguity in Kenya’s impeachment jurisprudence.

Conclusion

From the above glaring findings, the judgment can be summed up a politically safe but legally flawed judgement. The three-judge bench ruling appears designed to satisfy no one entirely while avoiding the most explosive outcome: a nullification of the impeachment that would have plunged the country into a constitutional crisis.

While this political pragmatism is understandable, it came at the cost of legal coherence. The judgment upholds a flawed process, awards token damages for a serious rights violation, issues an unenforceable directive to Parliament, and leaves key constitutional terms undefined. Future litigants and courts will struggle to draw clear principles from this ruling. A stronger judgment would have either nullified the impeachment for violating fair hearing rights or, at a minimum, provided clearer guidance and a more proportionate remedy. 

As it stands, the ruling is a missed opportunity to entrench fair process as an indispensable pillar of Kenya’s impeachment architecture. I hope that the main litigant will appeal and justice will be served.

The writer is legal commentator on constitutional and human rights issues, the article is intended for public education and does not constitute legal advice.