The question of whether impeached leaders can return to the ballot while fighting their removal in court remains unsettled, putting the 2027 political plans of former Deputy President Rigathi Gachagua and former Meru Governor Kawira Mwangaza under fresh scrutiny.
The uncertainty has emerged after Attorney-General Dorcas Oduor advised the Supreme Court against taking up a request for an advisory opinion on the eligibility of leaders who have been removed from office through impeachment.
Oduor argued that previous decisions by the courts have already dealt with the legal effects of impeachment and that the matter does not present a new constitutional question that would require the Supreme Court's advisory jurisdiction.
Her opinion, however, did not directly address whether a pending appeal or judicial review can temporarily halt the constitutional consequences of an impeachment.
This has drawn criticism from lawyers representing Meru County Assembly Speaker Ayub Bundi, who filed the reference before the Supreme Court in April 2026.
The lawyers say the Attorney-General failed to respond to eight questions that the court had directed her to consider. One of the main issues was "whether a pending appeal or judicial review against removal from office can suspend the constitutional consequences of impeachment and affect an official's eligibility to contest elections".
"Upon review, it is apparent that the opinion furnished does not address or answer any of those issues," the lawyers said.
They have asked the Attorney-General to "comply with the Supreme Court's direction by providing a legal opinion that specifically addresses and answers each of the questions set out in the Reference".
The legal dispute has particular importance for Gachagua and Mwangaza, who were both removed from office through impeachment and have continued to challenge their ousters through the courts.
Gachagua was impeached in October 2024 and later challenged his removal in the High Court. The court dismissed his case in June 2026, prompting him to move to the Court of Appeal.
His appeal continues to challenge the legality and constitutional implications of the impeachment.
Gachagua, who leads the Democratic Citizens Party, has already announced his intention to seek the presidency in 2027.
Mwangaza's political plans are also tied to the outcome of the dispute. She was removed as Meru governor in August 2024 after the county assembly approved her impeachment and the Senate upheld the decision.
The High Court rejected her challenge in March 2025 and upheld the removal. She subsequently appealed the decision, seeking to overturn the judgment and contest the legality of the impeachment process.
Mwangaza is the leader of Umoja na Maendeleo Party and plans to make another attempt at the Meru governor's seat.
The same constitutional question has a history involving other leaders who lost office through impeachment.
Former Nairobi Governor Mike Sonko was removed in December 2020. His legal challenges went through the courts before the Supreme Court dismissed his appeal in July 2022.
Former Kiambu Governor Ferdinand Waititu was impeached in January 2020 after the Senate backed his removal. He challenged the decision, but the High Court dismissed his petition in February 2022. The Court of Appeal later rejected his request for a stay pending his appeal.
Bundi's Supreme Court reference seeks clarity on Chapter Six and Articles 99 and 193 of the Constitution, which set out requirements and restrictions for people seeking elective office.
He argued that uncertainty remains over how integrity rules should apply to leaders removed from office through impeachment over alleged breaches of Chapter Six.
Another issue before the court is whether an order suspending removal from office while a case is being appealed or reviewed would also stop the constitutional consequences attached to that removal.
The Supreme Court did not answer the questions when the reference came before it.
Instead, on July 17, it directed Bundi to first obtain the Attorney-General's legal advice within 21 days before the matter could proceed.
"The applicant is directed to seek the Hon. Attorney General's advice, and such advice is to be given within 21 days from the date of this ruling," the court ordered.
In her response, Oduor maintained that the Supreme Court should decline the reference, describing it as "adversarial in substance, abstract in its constitutional formulation and hypothetical in its prospective application."
She further argued that it raises "no novel constitutional questions warranting the invocation of the Supreme Court's advisory jurisdiction."
Oduor based her position partly on the Supreme Court's 2022 ruling in Sonko's case. The court had described impeachment as a constitutional remedy whose consequences "are grave and may include disqualifications from engaging in any elective public position or to hold a public office."
While that ruling confirms that impeachment may result in disqualification from elective office, it did not clearly settle whether an ongoing appeal or judicial review automatically protects an impeached leader from that consequence.
The Attorney-General said superior courts, including the Supreme Court, have already dealt with the relationship between impeachment and judicial review.
She also said the questions raised largely touch on the eligibility of candidates, electoral clearance and the constitutional role of the Independent Electoral and Boundaries Commission.
For now, the unresolved legal question leaves Gachagua and Mwangaza, alongside other impeached leaders seeking political comebacks, without a clear answer on whether their ongoing court battles could affect their ability to appear on the ballot in 2027.