The appointment to the office of the Deputy President Committee during a meeting on October 31, 2024, to prepare for the swearing in of Kithure Kindiki. [Courtesy]
Prof Kithure Kindiki is set to be sworn in Friday as Kenya’s new Deputy President after a pivotal High Court ruling that lifted orders blocking his inauguration.
The three-judge bench, comprising Lady Justice Freda Mugambi, Justice Eric Ogola, and Justice Anthony Mrima, on Thursday said that the earlier conservatory orders were discharged, enabling the constitutional process to proceed.
In their ruling, the judges emphasised that maintaining the orders would hinder the operation of the Constitution.
The judges highlighted the importance of upholding the rule of law and respecting constitutional provisions.
Justice Mrima noted that the office of Deputy President should not remain vacant, as the Constitution does not envision such a scenario.
“We find that the current constitutional framework does not envision any scenario in which the office of the Deputy President would remain vacant, except during the brief period required to fill a vacancy,” he said.
While vacating the orders, Justice Mrima emphasised that public interest demanded that the office of the Deputy President not remain vacant.
“The orders issued on October 18, 2024, are hereby discharged and all set-aside. We grant leave of appeal, with typed proceedings of this ruling to be availed to parties at costs. We will mention this matter on November 6,” ruled Justice Ogola.
The orders were issued by the Kerugoya High Court following a petition filed by David Munyi Mathenge and Peter Gichobi Kamotho, terming the matter as one of “great national importance and urgency.”
In their detailed ruling, the judges set aside the conservatory orders, stating that no individuals would suffer loss or damage when the Constitution is mandated to operate as intended, affirming that impeachment is provided for in the Constitution.
“Allowing the constitutional process to unfold does not in itself result in detriment, as it upholds the rule of law and respects the framework agreed upon. Should any of these petitions succeed, this court will have no shortage of effective remedies to address this situation,” they said in a unanimous ruling.
“Allowing these orders to stand would leave the office of the Deputy President vacant; however, no other person is authorised to perform the constitutional functions specifically assigned to the Deputy President under Article 147(2) of the Constitution in the absence of the office holder. The result would effectively be the suspension of Article 147(2), an outcome no court should endorse,” Mrima ruled.
The judges further stated, “The court firmly holds that no court should issue orders that would suspend the operation of any provision of the Constitution, as such an outcome is clearly envisioned by the document itself.”
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Mrima explained that the three-judge bench is committed to upholding the obligation to respect and uphold the Constitution.
“We find that public interest in this matter favours adherence to the Constitution, which is the will of the people. Article 3 of the Constitution dictates that every person has a duty to respect and uphold it. Therefore, public interest demands that the office of the Deputy President should not remain vacant,” Mrima added.
The ruling comes after lawyers representing the National Assembly led by former Attorney General Githu Muigai urged the three-judge bench to lift the conservatory orders to pave the way for a swearing-in.
Gachagua, however, requested the court to reject this application, arguing that if the orders were lifted, it would be politically detrimental for him, as he would not be able to regain his office even if the High Court later invalidated his impeachment.
He expressed concerns that the respondents (Parliament and others) have a history of disobeying court orders, making it impossible to remove Kindiki from office if the petitions were successful.
But the judges ruled that no individuals would suffer loss or damage when the Constitution is allowed to operate as intended, affirming that impeachment is a constitutional process.
The court emphasised that it cannot operate under assumptions that its orders will be disregarded.
Moreover, judges said, the Attorney General, through Prof Muigai, has committed to complying fully with the court’s orders in this matter.
In their ruling, the judges also determined that jurisdiction to hear impeachment cases against the President and Deputy President does not lie with the Supreme Court within its realm of original and exclusive jurisdiction.
“It is undisputed that the impeachment of the Deputy President is a constitutional process, and the authority to determine the merits and procedures of such impeachment falls squarely within the jurisdiction of the High Court,” Justice Mugambi ruled.
On the issue of jurisdictional non-justiciability based on the political question doctrine, Justice Ogola stated, “It is our finding that the Constitution of Kenya has clearly delineated independent and distinct paths for the three arms of government. Accordingly, this court’s intervention in the matter before it is warranted.”
Dissatisfied with the decision, Gachagua, through lawyers Dudley Ochiel and Ndegwa Njiru, urged the court to stay its ruling for seven days to allow for an appeal. Ochiel informed the judges that Gachagua had filed an appeal in the Court of Appeal to challenge the earlier decision.
“We are asking you to stay your orders for seven days so that we can have a fair chance to present our issues properly,” Ochiel urged.
“It is my humble appeal that this court issues the conservatory order, as no clearance has been issued by the IEBC,” Njiru added.
Lawyer John Khaminwa, representing the Katiba Institute, also requested the judges to suspend their decision to allow the petitioners to file an appeal.
“We are operating in very dangerous waters with strong currents. This is an area where we must call for wisdom and a deeper understanding of human nature,” Khaminwa said.
The Attorney General and Parliament, represented by lawyers Muthomi Thiankolu and Tom Ojienda, vehemently opposed Gachagua’s request to suspend the decision.
