Impeached Deputy President Rigathi Gachagua's lawyer Ndegwa Njiru put up a spirited fight to stop Kithure Kindiki from taking over office even after the court gave the greenlight.
The three-judge bench led by Justice Eric Ogola lifted orders barring Deputy President Designate Kindiki from taking oath of office.
Njiru argued that since the Independent Electoral and Boundaries Commission (IEBC) is not properly constituted, there would be no organ to clear Kindiki for the position.
“The DP designate or nominated must attain the qualifications to hold the office. That is to mean that there must be an organ that will give a clean bill of health to say that Kindiki attains the qualifications,” he stated.
“It is all clear to us and nobody can deny that there is no IEBC. If he is to be sworn in tomorrow, what would be the import of swearing in a person who has not been verified and approved by the organ that is supposed to do so?” he posed.
He added that the functions of clearing Kindiki can only be executed or implemented by the IEBC.
Earlier, Gachagua was dealt a blow after the Court of Appeal declined to grant orders to stop the High Court from further prosecuting his ouster case.
Gachagua had moved to the appellate court noting that he is dissatisfied with the ruling delivered last week by a three-judge bench that approved the decision by Deputy Chief Justice (DCJ) Philomena Mwilu to empanel the bench.
The ousted DP was not pleased with the ruling that DCJ Mwilu had powers to constitute the bench, terming it wrong, mistaken, erroneous and based on a grave analysis of the constitution.
He was of the view that the bench can only be constituted by the Chief Justice.
The three-judge bench comprising Justices Antony Mrima, Ogola and Freda Mugambi ruled that the Constitution had set out the roles of the DCJ which included substituting the CJ where applicable.
