Deputy President designate Prof Kithure Kindiki now operates in a shadow of uncertainty even as Rigathi Gachagua challenges his impeachment in court.
So far 30 cases have been filed before the High Court all challenging the legitimacy of Gachagua's impeachment process.
The cases have since been consolidated by a three-judge bench which will hear the matter.
Kerugoya High Court issued orders that blocked Gachagua's replacement, Kithure Kindiki, from being sworn in.
But the State and the National Assembly led by Prof Githu Muigai, Shaddrack Mose and Eric Gumbo have since filed an application seeking to have those orders set aside failure to which, they argue, a constitutional crisis may arise.
As days turn into weeks, questions loom on whether the legal battle will be resolved in time for a peaceful transition or will the divisions deepen, forcing a crisis that could reshape the country forever.
Gachagua’s impeachment was upheld by the Senate a week ago despite his failure to testify at the trial.
Those in support of the impeachment have hailed it as a necessary step to restore integrity in government while Gachagua’s loyalists have maintained that the impeachment was politically motivated.
But with the numerous applications in court, the swearing-in will be delayed further.
On Wednesday the bench dealt with one of the preliminary issues being whether the Deputy Chief Justice had the powers to appoint the bench to determine the matters before the court.
Gachagua and other petitioners in the case took issue with how a file from Kerugoya law courts was placed before the DCJ on a Saturday night.
It was from the Kerugoya file that orders were issued blocking Kindiki swearing-in.
The said application was assigned to Justices Eric Ogola, Antony Mrima and Fredah Mugambi on the night of October 18, 2024, by the Honourable Deputy Chief Justice.
Gcahagua argued that the Deputy Chief Justice violated the Constitution in ordering the bench to hear and determine 3 matters in which conservatory orders have been issued against the government of Kenya.
They argued that only the Chief Justice is empowered to authorize the sitting of the Court on any day or time.
Based on these arguments, the petitioners sought to have the bench recuse itself.
In a brief rejoinder, the Attorney General as represented by Senior Counsels Githu Muigai and Tom Ojienda said the bench was properly constituted by the DCJ.
In citing the Judicial Service Act, they told the court that Mwilu was exercising powers donated to her by the CJ.
"It is clear from the Court tracking system that the CJ communicated to the DCJ that she will be away in Geneva Switzerland," said Ojienda.
The bench settled on the matter saying they do not find any fault in the honourable DCJ assigning judges to sit in this bench more so when the honourable Chief Justice has not raised any red flag.
"It is our finding that the constitutional function of the CJ to assign benches, being an administrative function, can be performed by the DCJ when the CJ, for good reason, is unable to perform," they said.
With this settled, the bench was required to deal with another application calling for their recusal.
Advocate Ndegwa Njiru representing one of the petitioners in the case argued that Justice Ogola who is the presiding judge of the bench is conflicted as his spouse is a member of the Kenya Water Towers Board, having been appointed by Ruto's CS.
He has faulted the Judge for failing to disclose the same.
The three-judge bench however dismissed the application meaning that they will continue to hear the matter.
The judges said they will hear the application seeking to lift the conservatory order staying the swearing-in of a new judge beginning Tuesday, October 29.
While filing the application, the solicitor general argued that the conservatory order is against the country’s interest as the constitution does not envisage a vacancy in the office of the Deputy President.
Once the bench convenes to hear their application, they may either grant an order to uphold the Kerugoya decision awaiting the hearing determination of the case or set aside the order paving the way for Kindiki’s swearing-in.
If they set aside the order, Gachagua will likely move to the Court of Appeal to challenge the order which may or may not be issued in his favor.
If he fails to secure an order at the appellate court, there is a likelihood he will challenge the same at the Supreme Court which may find he was not accorded a fair hearing and subsequently hand him a reprieve.
The impeachment case being the first of a deputy president tests the very fabric of the nation’s judiciary.