The devil's due: Fair hearing, constitutional finality and the jurisprudence of sanctioned infringement in Kenya's impeachment jurisprudence - A Critical commentary on constitutional Petition No. E565 of 2024 (Consolidated)

Abstract

On 8 June 2026, a three-judge bench of the High Court of Kenya delivered judgment in the consolidated petitions arising from the impeachment of H.E. Rigathi Gachagua as Deputy President. The Court made a finding of constitutional moment: that H.E. Gachagua\'s right to a fair trial under Articles 47 and 50 of the Constitution of Kenya 2010 was infringed when the Senate declined to allow an adjournment in his absence. Having made that finding, the Court then held that the infringement did not, and could not, vitiate the impeachment itself. It awarded Kshs. 50 million in constitutional damages and declined to quash the Senate resolution. This article argues that the judgment produces an analytically untenable and constitutionally corrosive proposition: that a non-derogable constitutional right of peremptory normative status may be violated in the course of a State-initiated process without that process being invalidated. It contends that this reasoning represents a retrogression in Kenya\'s constitutional jurisprudence toward the very pre-2010 culture of constitutional accommodation that the transformative constitutional project was designed to destroy. The article draws on natural justice doctrine, comparative constitutional law, international human rights law, and the theory of transformative constitutionalism to argue that constitutional finality and the right to a fair hearing are not genuinely in tension, and that the Court\'s resolution of that purported tension, by subordinating rights to constitutional architecture, is constitutionally unsound.

1. Introduction:

The devil\'s due There is an ancient maxim of natural justice whose provenance is said to predate every constitutional settlement: audi alteram partem or in common terms, hear the other side. The principle is, as Lord Denning once described it, the first principle of good government and the cornerstone upon which all systems of justice are built.1 Even the most morally compromised party, even one whose guilt is beyond reasonable contestation, is entitled to be heard before condemnation is visited upon read more...