Rigathi Gachagua has asked the Excessive Courtroom to temporarily stop its exclaim lifting conservatory orders that had blocked the swearing-in of his successor, Kithure Kindiki.
The oral software followed a Thursday ruling by a 3-resolve bench–Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi–who talked about that a protracted vacancy in the Office of the Deputy President would possibly possibly presumably perchance undermine constitutional provisions and hurt public hobby.
Gachagua’s suitable team argued for conserving the conservatory orders, suggesting that swearing in Kindiki without further overview would possibly possibly presumably perchance undermine due process.
Recommend Ndegwa Njiru contended that the Fair Electoral and Boundaries Commission (IEBC) had no longer cleared Kindiki, elevating questions about his eligibility.
He warned that an unverified appointment would possibly possibly presumably perchance compromise suitable procedures and public accountability.
“If Kithure Kindiki is to be sworn in tomorrow, what will be the impact of swearing in someone who has not been verified and approved by the proper organ?” Njiru posed to the bench.
Senate Counsel attorney Tom Ojienda countered, conserving that the subject used to be “res judicata” and the court docket, having dominated on the conservatory orders, used to be now functus officio, thus missing the vitality to revisit the problem.
“Ordinarily, when a court delivers a ruling on a matter, it becomes functus officio regarding that particular matter,” Ojienda argued.
“The applications are therefore res judicata in that a determination has been made.”
Prison professional Muthomi Thiankolu echoed Ojienda’s views, criticizing any makes an try to overturn prior choices, suggesting such actions risked turning the judiciary into a “pendulum,” inclined to inconsistent rulings.
“What you’re being asked to do is to flip-flop… A pendulum moves from one end to another but never leaves the extreme ends,” he talked about, warning that this kind of path would possibly possibly presumably perchance erode judicial stability and public self perception.
Lifted exclaim
The Kerugoya Courtroom before every thing issued the conservatory exclaim two weeks ago after President William Ruto nominated InteriorKindiki to replace Gachagua, following his impeachment.
Of their judgment, the bench deemed the conservatory orders unsustainable, stressing that a protracted vacancy would contravene constitutional principles, as the Deputy President’s office desires to be stuffed promptly below Kenya’s put up-2010 constitutional framework.
“The applications for conservatory orders are hereby disallowed. The conservatory orders issued on October 18, 2024, in Kerugoya High Court are hereby discharged,” the bench rendered.
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The bench clarified that extending the conservatory orders would leave the office vacant without reinstating Rigathi Gachagua as Deputy President.
The Justice Ogola-led bench emphasised that, below Kenya’s put up-2010 Structure, no other official–together with the President or the Speaker of the National Assembly–can fabricate the functions of the Deputy President, hence their finding that a protracted vacancy would be untenable.
“We are convinced 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 dominated.
The bench added that continued conservatory orders would effectively stoop constitutional provisions for the Deputy President’s unfamiliar functions, which itself would violate the Structure.
