Impeached Deputy President Rigathi Gachagua has arrived at Milimani Law Courts where a three-judge bench is set to hear an application challenging stay orders stopping his nominated successor Kithure Kindiki from taking office.
The application was filed by Solicitor General Shadrack Mose.
The stay order was issued by a Kirinyaga court on Friday.
The Solicitor General argues the order is against the country’s interest as the constitution does not envisage a vacancy in the office of the Deputy President.
“The said conservatory orders were issued ex-parte and without according to the state or the National Assembly or the parties a chance to be heard,” the application reads.
“That 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 without ascertaining whether he had jurisdiction to entertain matters concerning the impeachment process.
Advocate Eric Gumbo argues that according to the constitution, in particular articles 95 & 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 ceased to hold office on October 17 when the Senate voted to uphold his impeachment," said Gumbo.
The National Assembly which is in support of the AGs application to set aside the orders argues that stopping implementation of the resolution of the Senate will occasion a significant constitutional crisis.
They argue that the order by Mwongo was issued on the basis of non-disclosure of material facts including that the implementation of the resolution that has been stayed had already taken effect.