Court to rule on orders stopping Kindiki swearing-in

The High Court will today (Thursday) deliver a ruling on whether the state can proceed to swear in Deputy President nominee Kithure Kindiki or not pending a case filed by impeached DP Rigathi Gachagua.

Gachagua was earlier this month impeached by both the National Assembly and the Senate before he moved to court and secured orders stopping his replacement.

President William Ruto had by then nominated Interior CS Kithure Kindiki to become the new Deputy President.

MPs swiftly approved Kindiki’s nomination just minutes before the High Court issued orders stopping Gachagua’s replacement.

On Tuesday, lawyers representing the state and Parliament led by former Attorney General Prof Githu Muigai urged the court to lift the orders to allow continuity in running of government.

Githu told the court 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.

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.

But Gachagua’s lawyers put up a spirited fight urging the 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.

Judges Ogola, Mrima and Mugambi will give their ruling at 2.30 pm.

Before that, the Court of Appeal will also rule on Gachagua’s application challenging the empanelment of the bench.

Gachagua argues that the file was wrongly remitted to the bench by Deputy Chief Justice Philomena Mwilu and not the Chief Justice Martha Koome as was required.