National Assembly v Gachagua & 66 others
The bottom line
#Supreme Court can't halt High Court proceedings in Gachagua impeachment appeal.
What this practically means
#The Supreme Court of Kenya dismissed two applications in the appeal over former Deputy President Rigathi Gachagua's impeachment. First, the Court ruled it cannot stop High Court proceedings—only Court of Appeal cases. Second, it refused to strike out the National Assembly's appeal or Gachagua's cross-appeal, finding both raise proper constitutional issues. The Court also kept disputed documents in the record. Both sides must now prepare for the full hearing.
Executive summary
#Key legal issues
#Whether the Supreme Court has jurisdiction to stay proceedings before the High Court.
The Supreme Court lacks jurisdiction to stay proceedings before the High Court; its jurisdiction under Article 163(4) of the Constitution and Section 23A of the Supreme Court Act is limited to staying proceedings in the Court of Appeal.
The Court reasoned that its jurisdiction under Article 163(4) is to hear appeals from the Court of Appeal. Section 23A of the Supreme Court Act, which provides for stay of proceedings, must be read together with Article 163(4). Therefore, only proceedings before the Court of Appeal can be stayed by the Supreme Court. The Court cited its previous decisions in Kwale Sugar International Company Limited v EPCO Builders Limited & 2 others, Dande & 3 others v Director of Public Prosecutions & 2 others, and Moi Teaching and Referral Hospital & another v Gikenyi B & 76 others to support this position.
Whether the National Assembly's appeal should be struck out on the ground of judicial estoppel.
The prayer to strike out the appeal on the ground of judicial estoppel fails because the determination of that issue would require extensive analysis beyond what is contemplated for summary dismissal under Section 18 of the Supreme Court Act and Rule 42A of the Supreme Court Rules.
The Court noted that summary dismissal is only available where the Court lacks jurisdiction or it is apparent on the face of the petition that it is wholly defective and incompetent. The question of judicial estoppel would require a comparison between the National Assembly's positions in different proceedings, which is not a matter that can be determined summarily without elaborate argument.
Whether Hon. Gachagua's Notice of Cross-Appeal should be struck out for being procedurally defective.
The cross-appeal should not be struck out because it raises constitutional issues under Article 50 of the Constitution, satisfying the jurisdictional test under Article 163(4)(a), and is not wholly defective or incompetent.
The Court examined the grounds of the cross-appeal and found that they challenge the Court of Appeal's application of Article 50 of the Constitution on the question of bias and recusal of judges. Although the main appeal concerns Article 165(4), the cross-appeal raises distinct but related constitutional issues that were determined by the Court of Appeal in the same consolidated judgment. The cross-appeal meets the requirements for admission as set out in Munya v Kithinji & 2 others and Nduttu & 6000 others v Kenya Breweries Ltd & another.
Whether documents introduced in the Supplementary Record of Appeal should be expunged.
The documents should not be expunged because they are intrinsically linked to the appeal and were already referred to by the Court of Appeal in its judgment.
The Court found that the impugned documents all relate to the Deputy Chief Justice's empanelment directions of 18th October 2024, which are the subject of the appeal. The Court of Appeal repeatedly referred to those directions in its judgment. Hon. Gachagua did not demonstrate that the documents were intended to introduce new evidence or change the character of the appeal in a prejudicial manner.
Legal principles established
#- Supreme Court can only stay proceedings in the Court of Appeal, not the High Court.
- Summary dismissal of an appeal requires clear lack of jurisdiction or a wholly defective petition.
- A cross-appeal to the Supreme Court must involve interpretation or application of the Constitution.
- Documents already referenced by the Court of Appeal in its judgment are not automatically expunged.
- Judicial estoppel claims need full argument, not summary dismissal.
Court orders
#- 1.The Notice of Motion dated 17th July 2025 be and is hereby dismissed.
- 2.The Notice of Motion dated 23rd September 2025 be and is hereby dismissed.
- 3.There shall be no orders as to costs.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. E829 of 2024 as consolidated with Civil Appeal No. E022 of 2025
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Key timeline
#Practical implications
#Limit Supreme Court stay applications
When seeking a stay from the Supreme Court, target only Court of Appeal proceedings. Any application to stay High Court matters will be dismissed for lack of jurisdiction. Also, avoid summary dismissal motions unless the petition is facially defective or jurisdiction is clearly absent—otherwise, expect dismissal and wasted costs.
Know which court can halt your case
If you are involved in a High Court case that is linked to a Supreme Court appeal, do not ask the Supreme Court to pause the High Court proceedings. It has no power to do so. Instead, apply to the High Court or Court of Appeal for a stay. This ruling clarifies the limits of Supreme Court authority.
Cross-appeals must raise constitutional issues
If you file a cross-appeal in the Supreme Court, ensure it directly involves interpretation or application of the Constitution. The Court will strike it down if it raises only procedural or non-constitutional matters. Here, Gachagua's cross-appeal survived because it challenged bias under Article 50.
Frequently asked questions
#Can the Supreme Court stop High Court proceedings in Kenya?+
No. The Supreme Court ruled it can only stay proceedings in the Court of Appeal, not the High Court. If you need to pause a High Court case, apply to the High Court or Court of Appeal instead.
What happens to Gachagua's impeachment appeal after this ruling?+
Both the National Assembly's appeal and Gachagua's cross-appeal will proceed to a full hearing. The Supreme Court dismissed attempts to strike them out, so the case moves forward on the constitutional issues raised.
What is a cross-appeal in the Supreme Court of Kenya?+
A cross-appeal is a separate appeal filed by the respondent in an existing appeal. It must involve interpretation or application of the Constitution, just like the main appeal. The Court rejected efforts to strike out Gachagua's cross-appeal, finding it raised valid constitutional questions.
Can documents be removed from an appeal record in Kenya?+
Only if they are irrelevant or prejudicial. The Supreme Court refused to expunge documents from the National Assembly's record because they were already referenced by the Court of Appeal in its judgment. Parties should expect such documents to stay unless they clearly introduce new evidence.
Cite this brief
#Cite this brief
Caselaw, "National Assembly v Gachagua & 66 others", Case Analysis (2026). Petition (Application) E032 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/19/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.