The application, presented before a three judge bench at the Milimani Law Courts, sparked fresh legal drama in a case that has continued to attract national attention months after Gachagua’s historic impeachment.
The respondents argued that the affidavit was filed without leave of the court and introduced entirely new matters that were never raised during the Senate impeachment proceedings.
According to the lawyers, the document could unfairly alter the direction of the case after submissions had already been made.
At the centre of the dispute is an affidavit reportedly sworn by cardiologist Dr. Daniel Gikonyo, detailing Gachagua’s medical condition during the impeachment hearings in October 2024.
The affidavit also allegedly claims that President William Ruto personally contacted the hospital to inquire about Gachagua’s health while the Senate proceedings were ongoing.
Lawyers for the respondents insisted that such claims were serious and required independent verification before being admitted into evidence.
They urged the court to expunge the affidavit from the record, arguing that its contents had not been subjected to scrutiny during the Senate hearings.
“We ask that this affidavit be expunged from the record before you,” the respondents submitted during the hearing.
The legal team further questioned why the evidence was being introduced nearly one and a half years after the impeachment process without any explanation for the delay.
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They argued that the court’s role was to determine whether Parliament and the Senate acted lawfully based on the material that had been presented before those institutions at the time.
According to the respondents, neither the affidavit nor the deponent had appeared before the Senate, making the document irrelevant to the constitutional questions currently before the court.
However, Gachagua’s lawyers defended the filing, saying the affidavit was necessary to clarify the circumstances surrounding his hospitalization during the impeachment hearings.
They maintained that the document did not introduce a new case but merely provided evidentiary support to issues already under discussion.
In a significant twist, the court later declined to strike out the affidavit, ruling that it would remain on record in the wider interest of justice.
The judges nonetheless allowed the respondents to file responses and indicated that the doctor behind the affidavit could still be cross-examined.
The impeachment petition remains one of Kenya’s most closely watched constitutional cases, with Gachagua seeking declarations that the process leading to his removal violated the Constitution and denied him fair treatment.
