Divided opinion over Gachagua's fate following court's verdict

The fate of Deputy President Kithure Kindiki hangs in the balance following the milestone decision by the Court of Appeal on Friday, as a number of opposition politicians interpreted his continued stay in office as illegitimate.   

The court ruling invalidating the constitution of the court that validated the impeachment process of former DP Rigathi Gachagua has energized government critics who now believe that Prof Kindiki is not supposed to be in office

On Friday, the Court of Appeal declared the empanelment of a three-judge bench by Deputy Chief Justice Philomena Mwilu to hear consolidated petitions filed by former Deputy President Rigathi Gachagua seeking to block his successor Kindiki as illegal.  

Justices Daniel Musinga, Mumbi Ngugi and Francis Tuiyott said that Mwilu did not have constitutional powers to appoint the three-judge bench. The appellate court further directed that the matter be referred to the Chief Justice, who holds the exclusive mandate to empanel a bench to hear and determine such matters.

And as the country tries to figure out the import of the court ruling, experts from the political and legal realms have now chimed weighed on the matter.

Mukuruweini MP John Kaguchia termed the ruling by the courts as one of many potential developments that could end in the clearance of Gachagua to run for office come the 2027 elections.

“It was obvious that any independent and judicious judge would pick out the anomaly and rectify the mischief.  This pours cold water on the judgement that was procured by a bench that was unconstitutional. This is the beginning of unraveling the falsehoods spread against the person of the Former Deputy President and hopefully completely sanitize him and perhaps reinstate him to his position, leaving the decision to take back his position or not to himself. This would clear him to run for office if he wishes to,” Kaguchia told The Standard.

Separately, former Kakamega senator Cleophas Malala said that Rigathi Gachagua remains the legitimate Deputy President of Kenya following the court verdict.

 Malala argued that the conservatory orders issued by Justice Richard Mwongo — halting the impeachment and barring the then Interior Cabinet Secretary Kithure Kindiki from assuming the deputy presidency — remain valid and binding.

“In effect, Rigathi Gachagua remains the legitimate Deputy President of the Republic of Kenya,” Malala emphasized.

He continued, “This position (by the courts) is not driven by a pursuit of political power but by a deep commitment to uphold the spirit and letter of our Constitution. It is informed by the undeniable reality that, despite the irreparable breakdown in the working relationship between President William Ruto and Deputy President Rigathi Gachagua stemming from ideological differences, mutual mistrust, and perceived acts of betrayal by President Ruto, the Constitution does not permit personal or political disagreements to override the due process of law. The rule of law must prevail over political expediency, and constitutional officeholders must be accorded the protection and dignity their offices command. irrespective of shifting political alliances.”

However, Rarieda MP Otiende Amollo held that the judgment cannot mean that Professor Kindiki is in office illegally.

He argued that the impeachment process is a preserve of Parliament and it was conducted and completed by Parliament.

“There was no court order that stopped the impeachment. The court can make observations here and there, but even a new bench would not stop a process that was complete,” said Otiende.

“In law, this is what we call a fait accompli. Legally, there can be a time when things are overtaken by events and this is one of them. The impeachment process was started and ended and a new deputy president was appointed,” he added.

The legislator who is also a senior counsel further argued that the judgment on the empanelment of the bench buttresses the decision by Parliament that no one could constitute a bench that could have stopped the impeachment process. Even for posterity, it proves the process cannot be stopped in any way, he said.

“But the judgement also puts the law in a risky place because the Chief Justice can sabotage certain acts by being absent... Our Constitution sets timelines to prevent a situation known in law as interregnum. The Constitutional design dictates that there must be a President, and in his absence then the deputy president can act. If the deputy president is unable to act, then there is the provision for a speaker,” the MP added.

But another lawyer, Kibe Mungai, had different views, arguing that with the directions, the matter be referred to Chief Justice Martha Koome, it was now expected that another bench would be formed to hear the cases by Gachagua and team within fourteen days.

“The first issue of that bench would be obviously to hear afresh the cases that were heard by those three judges without authority,” said Mungai, who spoke during a media interview.

“The Deputy President may be in office de facto – it is a reality he is discharging certain functions but under the law, he will have to wait for the fresh hearing of the petitions to confirm whether he is in office legally.”

And while appreciating the fact that the courts had shown interest in dispensing with the matter once and for all, he noted that the same would not be done with haste but procedurally.

“There is no hurry, there was hurry only when the President and Parliament were dealing with this issue. The court processes are supposed to be procedural to ensure that in every step of the way, what was required by the Constitution and rules of natural justices are observed,” he added.

Deputy Chief Justice  Philomena Mwilu had on October 18, 2024, appointed Judges Eric Ongola (presiding) and Justice Anthony Mrima and Lady Justice Freidah Mugambi to hear and determine multiple petitions by Gachangua and his associates against the Parliament and Kindki.

Gachagua's lawyers led by Paul Muite, argued that the impeachment process initiated by the National Assembly was flawed, maintaining that the DP was not afforded a fair hearing due to the limited time frame imposed in just 12 days.

Muite emphasized that the standing orders, which guided the impeachment, contravened constitutional requirements for due process.

The DP had argued that the public participation process mandated by law was insufficient and merely a sham, depriving Kenyans of the opportunity to engage meaningfully in such a critical process.

Gachangua further said Mwilu did not have the constitutional powers to appoint the bench because she was not the substantive Chief Justice and could not discharge the duties of the CJ at the time.

And in February this year, the Court of Appeal issued conservatory orders stopping the High Court from hearing the cases.