Court clears path for Kithure Kindiki's swearing-in as DP

Prof. Kithure Kindiki is now officially set to be sworn in as Kenya’s Deputy President, succeeding Rigathi Gachagua, who was impeached. 

This follows a High Court ruling on Thursday, October 31 lifting conservatory orders that had blocked Kindiki's swearing-in.

The three-judge bench, comprising Justices Eric Ogola, Anthony Mrima, and Fredah Mugambi, cited the need to ensure continuity in office.

“The applications for conservatory orders are hereby disallowed. The conservatory orders on October 18, 2024, in Kerugoya High Court are hereby discharged,” ruled Justice Ogola.

The judges, in their ruling, argued that the office of the DP cannot remain vacant.

“Allowing the conservatory orders to stand will leave the office of the deputy president vacant. This court firmly holds that no court should issue orders that have the effect of suspending the operation of any provision of the Constitution as such an outcome is clearly not envisioned by the document itself,” said Justice Mrima.

Kindiki’s swearing-in was initially halted after the High Court in Kerugoya issued an order barring him from assuming office pending the hearing of a case challenging his appointment.

Gachagua, through his legal team, filed a case contesting the legality of his removal and the nomination of Kindiki as his replacement.

"Conservatory orders are hereby issued against the implementation of the Senate’s resolution, preventing any individual, including the nominee approved by the National Assembly, from assuming the office of the Deputy President," the Kerugoya Law Court ruled on October 18.

Gachagua’s legal team, led by Paul Muite, challenged the formation of the three-judge bench, arguing that only the Chief Justice, not Deputy Chief Justice Philomena Mwilu, could constitute such a bench.

However, the High Court upheld Mwilu's authority, affirming that under the Constitution, the Deputy Chief Justice may act in place of the Chief Justice when necessary.

The court defended its decision, addressing concerns over impartiality, bias, and the merit of Gachagua's application for recusal.

Despite approvals of Kindiki’s nomination by both the Senate and National Assembly, petitioners Peter Gichobi and David Munyi filed a suit to delay Kindiki's swearing-in pending the resolution of cases against Gachagua’s impeachment.

Gachagua’s legal team later sought the recusal of Justices Mrima, Ogola, and Mugambi from the case, but the request was denied. Dissatisfied, Gachagua escalated the matter to the Court of Appeal, arguing that Mwilu’s selection of the judges violated the Constitution.

On Thursday, October 31, the Court of Appeal deferred the hearing of Gachagua’s application to freeze High Court proceedings to next week Wednesday.

The delay followed statements from the Independent Electoral and Boundaries Commission (IEBC) and the United Democratic Alliance (UDA) that they had not been served with the necessary documents.