Court clears way for Kindiki to take oath as next Deputy President

The High Court has lifted orders stopping the swearing in of Deputy President designate Prof Kithure Kindiki to the second in command after President William Ruto.

The orders issued by Justice Richard Mwongo of High Court in Kerugoya were vacated by a three-judge bench comprising of Lady Justice Freda Mugambi, Justices Eric Ogola (presiding), and Anthony Mrima.

“The orders issued on October 18, 2024, are hereby discharged and all set aside. We grant leave of appeal, typed proceedings of this ruling to be availed to parties at costs. We sill mention this matter on November 6,” stated justice Ogola.

Attorney General and Parliament (National Assembly and the Senate) among others, had urged the bench to lift the orders stopping the swearing of Prof Kindiki to replace impeached Deputy President Rigathi Gachagua.

Mr Gachagua had however urged the court to reject the application, stating that if this happens, it will be politically fatale for him as he shall not be able to regain his office even if the High Court invalidates his impeachment.

He had also urged the court to conserve the conservatory orders expressing the concerns that respondents (Parliament and others) have a history of disobeying court orders once the office of the DP is filled, it would be impossible to remove (Prof. Kindiki from office) if the petitions were successful.

But the judges said no individuals will suffer loss or damage when the Constitution is mandated to operate as intended, maintaining the impeachment is provided for in the constitution.

“Allowing the constitutional process to unfold does not in itself result in detriment as it upholds the rule of law and respects the framework agreed upon. Should any of these petitions succeed, this court will have no shortage of effective remedies to address this situation,” they said in a unanimous ruling.

"However, this court takes the view that it cannot operate under assumptions that its orders will be disregarded. This country has legal mechanisms to address any acts of disobedience of court orders. Moreover, the Attorney General through Prof Githu Muigai has undertaken to comply fully with orders issued by this court in this matter.”

The judges said the Constitution has fundamentally redefined the office of DP which is now safeguarded from arbitrary and capricious actions by the president.

They said Article 172 has given the DP specific constitutional functions in addition to any duties the president assigns the holder of the office.

“When the office of the DP becomes vacant, any functions that were assigned to the DP automatically reverse to the president and the functions conferred upon the DP by the Constitution, do not revert to the president and cannot be performed by anyone else,” the judges said adding that extending orders restraining swearing in of Prof Kindiki would mean such duties cannot be performed by anyone.

The court will resume sittings at midday on Tuesday next week to continue with the hearings and it expected the swearing of Prof Kindiki will be underway.