Focus this week shifts to the Judiciary as a three-judge bench is expected to rule on the legality of removing and replacing impeached Deputy President Rigathi Gachagua.
Judges Eric Ogola, Antony Mrima and Dr Freda Mugambi on Tuesday at 11am will tomorrow hear an application challenging an order barring swearing-in of Kithure Kindiki as Gachagua’s replacement as the Deputy President. Gachagua was impeached by Parliament with his fate now subject to court decision.
He has denied all the 11 charges including sowing discord, undermining the President, and committing corruption offences.
“The said conservators’ orders were issued ex-parte and without according the state or the National Assembly or the parties a chance to be heard,” the application reads.
“… it is prejudicial to the people of Kenya and the entire republic if the office of the Deputy President remains vacant as a result of the ex-parte interim orders.”
The National Assembly, on the other hand, claims Justice Richard Mwongo issued the order against swearing-in Kindiki without ascertaining whether he had jurisdiction to entertain matters concerning the impeachment process.
Advocate Eric Gumbo argued that the constitution, in particular Articles 95 and 96, vests Parliament with the exclusive mandate to hold the Executive accountable through mechanisms, including impeachment.
“Justice Mwongo issued the ex-parte order with the effect of reviewing the impeachment proceedings, contrary to the doctrine of political questions when Gachagua ceases to hold office on October 17 when the Senate voted to uphold his impeachment,” he said.
The National Assembly, which supported the Attorney General’s application to set aside the orders, argued that stopping implementation of the Senate resolution will cause a significant constitutional crisis.
It is their argument that the order by Mwongo was issued on the basis of non-disclosure of material facts, including that implementation of the resolution that has been stayed had already taken effect.
Kindiki on Friday was nominated as Deputy President and on the
same day was processed and gazetted by the National Assembly as
the DP.
Gazettement means Kindiki is the Deputy President-elect, awaiting
his swearing-in.