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Impeached Deputy President Rigathi Gachagua yesterday put up a spirited fight to block Deputy President nominee Kithure Kindiki from assuming office urging judges not to set aside orders stopping his replacement.
Gachagua, through a battery of lawyers led by senior counsel Paul Muite and Elisha Ongoya, told justices Eric Ogola, Antony Mrima and Freda Mugambi that lifting the orders will allow Kindiki to be sworn in thus rendering their petition an academic exercise.
Muite said Gachagua remains the Deputy President courtesy of the conservatory orders issued by the High Court and vacating the orders will mean his case is already defeated.
“The constitutional right of the Deputy President has been violated and that is why he has challenged his impeachment. The sole purpose of a conservatory order is to preserve that subject matter,” Muite said.
Ongoya said Gachagua’s impeachment was hurried. He said the speed with which the process was undertaken particularly in the Senate, led to serious violations of Gachagua’s constitutional rights.
He said that was the reason the High Court issued conservatory orders in the matter.
Ongoya said lifting the orders as requested by the state would allow the completion of the violation of the Constitution at ‘supersonic speed’.
He urged the judges to use the opportunity to right the wrongs that may have been committed by the Executive and Legislative arms of the government.
“The Judiciary is our remaining beacon of hope. The Executive and the Legislature and recently constitutional commissions have left the country hanging perilously by their actions,” Ongoya said.
He said it was illogical to accept the fact that the Senate concluded the Gachagua impeachment hearing on the night of October 17 only for Kenyans to wake up to a Deputy President nominee the following morning.
He cited the EACC and the IEBC, which President William Ruto in forwarding Kindiki’s name to Parliament for approval as DP nominee said had both approved his nomination.
“The Bishop David Oginde-led EACC cleared Kindiki’s nomination at night. The IEBC cleared Kindiki at night. The President also received all these clearances and approved them that night before passing the name to Parliament.”
Ongoya said the court must not allow the hurried process of getting Kindiki to assume the office of Deputy President to get to its conclusion by declining the application to set aside or vary the orders.
However, the state in its rebuttal urged the court to discharge the conservatory orders.
Senior counsel Tom Ojienda said allowing the conservatory orders to remain in force would create discontinuity in the running of government functions.
“This order flies in the face of public interest because there should be no interregnum. The wider public interest is greater than the interest of one man,” Ojienda said.
He said Kindiki should be allowed to assume office to fill the gap occasioned by Gachagua’s impeachment.
Earlier, senior counsel Githu Muigai told the court that the fact was that there is a vacancy in the office of the Deputy President that needs to be filled.
He said the conservatory orders that were issued had been overtaken by events.
“The Deputy President ceased to hold office on October
17 when the vacancy arose after senators ratified his impeachment, so there was
nothing to preserve and the order was overtaken by events,” Githu said.