High Court declines to lift orders barring Kindiki from assuming DP office

The High Court has declined to lift orders barring Prof Kithure Kindiki from assuming office.

 High Court Judges Eric Ogola, Freda Mugambi and Anthony Mrima instead directed on Saturday that the applications filed by the Attorney General and the National Assembly be heard on October 22, 2024.

 “In light of the urgency of the matter and the weighty issues raised therein, we direct that the application be served and responded to forthwith, for hearing inter-partes on October 22, 2024 at 11.00 a.m in open court no.18,” the orders signed by Justice Mugambi read in part.

 In her application, Attorney General Dorcas Oduor claimed that the Deputy President’s position is now vacant owing to the orders issued by Justice Richard Mwongo in a case filed by David Munyi and Peter Kamotho.

 According to Oduor, it was unfair to issue the orders without first hearing the government.

 “The Constitution of Kenya, 2010 does not envisage a vacuum in the office of the Deputy President and as such it is in the interest of justice that the interim orders herein be set stayed, varied and /or set aside. It is prejudicial to the people of Kenya and the entire republic if the office of the Deputy President remains vacant as a result of the ex-parte interim orders,” the application filed by the Solicitor General Shadrack Mose reads in part.

 Justice Mwongo ordered that no one appointed by President William Ruto should occupy the office until the application is heard on October 24.

 He directed that the file be placed before Chief Justice Martha Koome to appoint a bench to hear it.

 In another order, Justice Chacha Mwita suspended the implementation of the Senate’s resolution to kick out Rigathi Gachagua while Justice Bahati Mwamuye declined to issue orders on the basis that some had been overtaken by events.

 Following the orders, Rigathi’s lawyers asserted that he remains the second in command.

 Nevertheless, AG said that Justice Mwongo should have declined to issue the orders on the basis that all government actions are presumed to be legal.

 “The decision by the Honourable Court contravenes the principle of law that presumes legality and regularity of all government action; Omnia praesumuntur rite et solemniter asse acta: all acts are presumed to be done rightly and regularly see Supreme Court decision in Raila Odinga V Iebc & 3 Others Supreme Court of Kenya Election Petition No 5 of 2013,” argued Mose.

 The National Assembly also pleaded with the court to lift the orders.

 It argued that the orders issued by the courts had been overtaken by events as Kindiki’s name had already been  approved by the Members of Parliament and speaker Moses Wetang’ula had gazetted his name by the time Judges were intervening.

 “The impugned ex-parte orders relate to constitutional steps that are substantially overtaken by events and portend far reaching ramifications that could jeopardize the public interests ot the extent that the Ist Respondent has ceased to hold office in terms of Article 150(2) as read with Article 145(7) of the Constitution whilst the ex parte order prevents assumption of office of the newly appointed Deputy President,” argued National Assembly’s lawyer Eric Gumbo.

 He also argued that the orders were issued without ascertaining whether Justice Mwongo  had powers to entertain cases concerning the impeachment process.

 According to Gumbo, Rigathi ceased being DP on October 17. He claimed that the orders had created a constitutional crisis.

 “The orders issued the ex parte Order with the effect of reviewing the impeachment proceedings contrary ot the doctrine of political questions when H.E. Rigathi Gachagua ceased to hold office on 17th October 2024 pursuant to article 145(6) when at least two-thirds of al members of the Senate voted to uphold the impeachment charge against the Deputy president,” he said.