The illegitimate DP: Ruling puts Kindiki's legitimacy in doubt

Is Deputy President Kithure Kindiki, the person holding the country’s second-highest executive seat, lawfully in office?

This is the question on the lips of legal experts, constitutional litigants, and political observers across the nation after the Court of Appeal on Friday poked holes on the legitimacy of Kindiki as DP.

Interviews with legal minds reveal that the Friday ruling effectively renders Kindiki an illegitimate Deputy President.

The ruling issued by the appellate court has triggered a wave of constitutional debate and political tension, with legal experts now claiming that Kindiki is unlawfully holding office.

At the heart of the controversy is the Court of Appeal’s unanimous verdict that Deputy Chief Justice (DCJ) Philomena Mwilu acted beyond her constitutional mandate when she empanelled a three-judge High Court bench to hear consolidated petitions challenging the impeachment of former Deputy President Rigathi Gachagua.

The bench, composed of Justices Daniel Musinga, Mumbi Ngugi and Francis Tuiyott, was unequivocal: under Article 165(4) of the Constitution, the power to empanel judges lies exclusively with the Chief Justice, not the Deputy Chief Justice.

This landmark decision has now sent ripples across the legal fraternity and political corridors, because the now-discredited bench was central to lifting two judicial orders that had barred the implementation of Gachagua's impeachment and swearing in of Kindiki as Deputy President.

"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," a Kerugoya law court had ordered on October 18.

According to constitutional lawyer Soyinka Lempaa, who represented petitioners from Kerugoya County who had secured orders barring Kindiki from being sworn into office, the Court of Appeal's decision essentially reinstates the original conservatory orders that had stopped Kindiki’s ascension to the position.

“Any actions done by the three judges of the High Court appointed by DCJ Mwilu are illegal, null and void following the Court of Appeal decision. The orders barring Kindiki from assuming the office are still in force as they had allegedly been illegally vacated by an unlawfully constituted bench of judges. As we speak, Gachagua is the Deputy President of Kenya,” Lempaa told the Sunday Standard.

Lempaa further called on Kindiki to step aside voluntarily, stating:

“He is a distinguished lawyer and a gentleman. He understands the law. He knows he is in office illegally. He should do the honourable thing and vacate the seat.”

Senior counsel John Khaminwa also waded into the constitutional crisis surrounding the deputy presidency, declaring that Kindiki is no longer legally in office following the Court of Appeal verdict that invalidated the bench that cleared his path to power. 

"Kindiki is holding office illegally. Gachagua should continue to serve as Deputy President," says Dr Khaminwa, adding:

"Kindiki should not be Deputy President at all since the judges appointed by Deputy Chief Justice Mwilu were found to have been unconstitutionally constituted. According to the Court of Appeal's decision, Kindiki ceases to be Deputy President, and Gachagua should be reinstated."

Khaminwa called on President William Ruto to reinstate his former DP.

"The President must reinstate Gachagua immediately, restore his security detail, and reopen his office. The court has spoken, and we must obey its orders." 

This crisis began with the disintegration of the working relationship between  Ruto and Gachagua. Following the falling out, Kibwezi West MP Mwengi Mutuse  tabled an impeachment Motion in the National Assembly against the DP On October 1, 2024. 

Eleven charges were leveled against Gachagua, including incitement, corruption, and public undermining of government policy. 

The motion passed with an overwhelming majority of 281 MPs in favour and only 44 against.

The Senate, on October 17,  also upheld the impeachment, and President Ruto nominated Kindiki as Gachagua’s successor. Kindiki was sworn in on November 1, 2024.

All this happened despite court orders by Justice Chacha Mwita halting the implementation of the Senate impeachment.

As the process was going on, three politicians from Kerugoya County secured orders from Justice Mwongo halting the swearing in. 

The two matters were later referred to the Chief Justice for appointment of a bench to hear the matters, but interestingly, DCJ Mwilu swiftly constituted the bench to hear cases on the Saturday night of October 18.

Hours later, the bench with judges Erick Ogola, Anthony Mrima, and Lawrence Mugambi lifted the orders.

Gachagua and his allies, through their legal team led by Paul Mwite, challenged the bench’s appointment, arguing that DCJ Mwilu could not legally assign such a panel as she was not the substantive Chief Justice at the time and had not taken an oath of office as Acting Chief Justice. 

Muite further alleged bias and conflicts of interest involving the appointed judges.

In its judgment, the Court of Appeal emphasized that only the Chief Justice, in this case, Martha Koome, has the constitutional authority to empanel benches for hearing matters certified to be of substantial public interest or constitutional significance.

Two conservatory orders, one by Justice Mwongo stopping Kindiki’s swearing-in and another by Justice Mwita halting Gachagua’s removal, remain legally intact, lawyers argue.

The Friday Court of Appeal’s ruling has elicited sharp reactions from Kenya’s legal elite.

“In effect, the order by the three judges discharging the orders by single judges stopping the impeachment of Rigathi Gachagua are null and void ab initio. In that case, we have two Deputy Presidents. That is what the Court of Appeal has said.” former Law Society of Kenya (LSK) President Nelson Havi argued. 

Lawyer Ochiel Dudley, who was on Gachagua's legal team, welcomed the ruling saying said their client is now focused on ensuring a fresh, constitutionally compliant bench is empanelled.

“We are not concerned about the interim orders. What we are now waiting for is for the Chief Justice to appoint another bench to hear our petitions on merit, without delay,” Ochiel said, adding:

“Our client(Gachagua) does not want to comment on the conflicting interpretations about the conservatory orders.”

"What is the consequence of the Court of Appeal's ruling in the Gachagua case? I would answer that we go back to the status quo ante. Thus, if the illegal bench lifted the orders barring the swearing in of Kindiki, then we go back to the status quo before it lifted those orders," said Migai Aketch, a professor of law at the University of Nairobi.

Willis Otieno, a constitutional expert, argues the decision underscores a broader procedural flaw.

“On the law, it reasserts the constitutional role of the Chief Justice in safeguarding the judicial process. But politically, it hands Gachagua breathing room not on substance, but on a technicality,” Otieno said.

With Kindiki already having been sworn in, can he legally continue to discharge the duties of DP?

According to Lempaa and Khaminwa, the answer is a firm no. 

“Anything the High Court bench led by Justice Ogolla did was illegal. The original orders stopping Kindiki’s installation are still valid,” says Lempaa.

The controversy is compounded by the fact that the presidency or the Attorney General has not issued any statement acknowledging the legal developments. 

The next move lies squarely with Chief Justice Koome. She will have to decide whether or not to empanel a new bench to hear the constitutional petitions as per the direction of the Court of Appeal.

“Whether or not to include the three judges or any of them in the reconstituted bench is a decision to be made solely by the Chief Justice,”  the Justice Musinga-led appellate bench stated.

The Court of Appeal directed that the three petitions be referred to Chief Justice Koome for fresh empanelment of a constitutional bench within 14 days.

In the over 40 cases pending before the High Court, Gachagua and his associates are seeking to overturn the Senate's decision to impeach him, arguing that the allegations against him were based on falsehoods and outright lies, and therefore, the impeachment was illegal and unconstitutional.

Gachagua says he was not accorded a fair hearing by Parliament and public participation was not conducted in accordance to the Constitution.

He argues that the appointment of his predecessor was illegal as he was not elected through a vote.