Blow to Gachagua as Court Lifts Orders Stopping Kindiki’s Swearing-In

Three-Judge Bench Lift Conservatory Orders

Lady Justice Freda Mugambi in response to the question of jurisdiction stated that the authority to determine whether the procedure of such an impeachment process was due falls squarely within the jurisdiction of the High Court.

“Jurisdiction to hear disputes arising from the impeachment of the President and Deputy President does not lie with the Supreme Court within the realm of original and exclusive jurisdiction, instead, such jurisdictions may be exercisable within the Supreme Court appellate jurisdiction,” she ruled.

“We do hereby find and hold that this court has the jurisdiction to sit and determine the matter that is before it.”

Justice Eric Ogola stated that the matters raised in the petition are justiciable (proper to be examined in Courts of Justice) to settle the question on whether an impeachment is a political process. 

“An impeachment decision decided can be challenged before the high court. The Kenyan system emphasizes oversight. The US position does not apply in Kenya Political question doctrine in the mud,” said Justice Ogola.

On his part, Justice Antony Mrima affirmed that the constitution of Kenya did not envisage scenarios where the Office of the Deputy President can be vacant.

“We take the position that the Constitution must remain fully operational at all times, and no court order should render any part of it inoperative or dormant. We hereby find and hold that public interest calls us to uphold the Constitution, which is, in any event, the will of the people. Therefore, public interest demands that the office of the Deputy President should not remain vacant,” affirmed Mrima. 

High Court Judge Justice Mwongo Richard Mururu in Kerugoya issued orders preventing Interior CS Kithure Kindiki from assuming the office on October 18.

The Court’s decision was in response to a case filed by David Mathenge and Peter Kamotho. 

On his part, Justice Anthony Mrima stated that when the office of the Deputy President is declared vacant, there is a period required to fill such vacancy.

He stated that they cannot provide a decision that might lead to suspending of any operations of the constitution and disrupting the intended balance of provisions.

Why Parliament Wanted Orders Granted to Gachagua Lifted

The National Assembly while challenging the order stated that Justice Mwongo granted an order which was final in nature, offending the rules of natural justice which dictates that both sides ought to be heard before issuing such an order with far-reaching implications.

Furthermore, it opined that the court issued the order without ascertaining whether it had the jurisdiction to entertain matters concerning the impeachment process.

They also raised concerns about how the courts expect Gachagua to collaborate with President William Ruto, given that he was removed from office for allegedly undermining his superior and contradicting cabinet decisions, according to fresh court filings.

It highlighted that the possibility of reinstating  Gachagua is “even more remote” considering the grounds for his impeachment, which involved undermining the President.

Their lawyer Prof. Tom Ojienda contended that Paul Muite never submitted a medical report for Gachagua after telling the Senate that he had been admitted then they proceeded to walk out.

“Every opportunity was presented to the respondents to respond but they opted not to proceed,” he said.

Prof Githu Muigai stated that the impeachment process is a political process and that it why it goes to a political chamber and Senate sits as a political body.

Muigai held that the orders staying the nomination and National Assembly’s vote confirming Kithure Kindiki’s nomination as DP was overtaken by events and that the courts had “nothing to conserve”.