NAIROBI, Kenya, Oct 31 — Impeached Deputy President Rigathi Gachagua has suffered a major blow after judges lifted a conservatory order blocking the swearing-in of his successor Prof Kithure Kindiki.
Justices Eric Ogola, Anthony Mrima and Dr Freda Mugambi rendered the ruling on Thursday noting that the continued vacancy in the Office of the Deputy President would suspend sections of the Constitution, defeating public interest.
The conservatory order blocking Kindiki’s swearing-in was issued by a Kerugoya Court on October 18, soon after President William Ruto nominated the Interior Cabinet Secretary to replace Gachagua who was impeached on October 17.
“The applications for conservatory orders are hereby disallowed. The conservatory orders on 18th of October 2024 in Kerugoya High Court are hereby discharged,” the bench rendered.
The bench noted that an extension of conservatory orders would mean the office remains vacant since the orders did not imply the reinstatement of Gachagua as Deputy President.
Vacancy untenable
The Justice Ogola-led bench held that the functions of the Deputy President post-2010, unlike the Vice President in the 1963 Constitution, cannot be discharged by the President, the Speaker of the National Assembly or anyone else, hence the find that an extended vacancy would be untenable.
“We are convinced and find that the current constitutional framework does not envision any scenario in which the office of the DP would remain vacant except during the brief period required to fill a vacancy,” the bench ruled.
It noted that continued conservatory orders would render constitutional provisions providing for exclusive functions of the Deputy President suspended, a situation that would by itself constitute a violation of the Constitution.
The bench consequently, slotted a mention of the petition contesting Gachagua’s impeachment on November 7 even as it granted the petitioners leave to appeal promising an expedited hearing.
Prior to rendering the determination, the court ruled on the question of justiciability holding it had a role in procedural review should the impeachment processes conferred to Parliament violate the law.
The court also affirmed jurisdiction over the matter on similar grounds.
“It is our finding that the Constitution of Kenya has delineated independent and distinct paths for the 3 arms of government. Accordingly, this court’s intervention in the matter before it is warranted,” the bench ruled.
Deferred appeal hearing
The ruling by the bench marked the second successive blow to Gachagua in a day after the Court of Appeal declined to grant temporary orders suspending proceedings before the Ogola-led bench.
Presiding Judge Patrick Kiage, sitting together with Justices Aggrey Muchelule and George Odunga, declined a last-ditch effort by Senior Counsel Paul Muite shortly after delivering a ruling on Thursday suspending its own proceedings until November 6.
“The matter is urgent and has huge public interest and the members of the bench, though engaged in other matters in the course of next week, will assemble at 12 noon on Wednesday for the highlighting of submission on the matter,” Justice Kiage stated.
The bench suspended its hearing of Gachagua’s appeal against the High Court decision affirming Deputy Chief Justice Philomena Mwilu’s authority to empanel benches after a section of respondents told the court the applicant had not served all respondents in the consolidated petition from which the appeal arose.
The respondents, including the Attorney General, National Assembly and the Senate, told the Court of Appeal bench to enforce its rules by requiring applicants to serve all parties.
Responding to a question from Justice Muchelule, advocate John Khaminwa appearing for Kituo Cha Sheria — a rights lobby — said he was ready to argue the “simple” application lack of service notwithstanding.
The Justice Kiage-led bench however, rejected Khaminwa’s proposal and ordered the applicant to amend his application accordingly and serve all parties by noon on Friday.
The bench further ordered respondents to file responses by Monday, November 4, ahead of a session to highlight oral submissions on November 6.
Source: capitalfm
