The High Court has declined to issue conservatory orders to prevent the appointment of deputy president nominee Kithure Kindiki as the new Deputy President, replacing Rigathi Gachagua.
A three-judge bench ruled that issuing the order would interfere with the functions and structures of the Constitution by envisioning vacancies in constitutional offices.
High Court Judges Antony Mrima, Eric Ogola and Freda Mugambi in a ruling issued in October, declined to give orders stopping Prof Kindiki from assuming office, putting him on the cusp of becoming the third deputy president of Kenya under the Constitution.
“The following orders are hereby issued. The applications for conservatory orders are disallowed. The conservatory orders issued on October 18, 2024 in Kerugoya High Court are hereby discharged.
“Leave to appeal is granted, and typed proceedings and certified copies of this ruling shall be made available. This matter will be mentioned on 7th November 2024 in open court,” the judges said in the ruling read by Justice Ogola.
The ruling by the judges follows an application that was filed by Gachagua, asking the court to extend the conservatory orders issued in Kerugoya stopping the swearing in of Prof Kindiki as the DP.
Gachagua, had also earlier suffered another blow, after the Court of Appeal declined to grant orders stopping the three-judge bench of the High Court from further prosecuting his ouster case.
The impeached DP had moved to the Appellate court arguing that he is dissatisfied with the ruling delivered by the High Court judges declining to recuse themselves from the case on the basis that the bench had been empaneled by deputy chief justice Philomena Mwilu.
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In their ruling, the High Court judges argued that it was their view that the office of the deputy president cannot remain vacant and that the court would be on the side of the Constitution, which stipulates that there must be continuity.
They also noted that the case holds significant public interest and were committed to “an expeditious determination to the petitions”.
“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,” said Justice Anthony Mrima.
He further added that contrary to the arguments by Gachagua that failing to extend the conservatory orders would infringe on his rights to be heard by the court, no individual can suffer loss or damage when the Constitution is permitted to operate as intended.
“Therefore, public interest demands that the office of the Deputy President should not remain vacant. The person who assumes the office after the impeachment of the deputy president shall, unless lawfully removed from office, hold that position until a court rules otherwise or until the current term of the President ends, whichever comes first,” the judge ruled.
Mr Gachagua was removed from office on October 17 and Prof Kindiki nominated by President William Ruto the following day. Prof Kindiki was approved by the National Assembly.
The impeached DP and other petitioners, however, rushed to court and obtained orders blocking his replacement pending the determination of the ouster cases.
Justice Richard Mwongo in Kerugoya had issued an order blocking Prof Kindiki from being sworn in as DP. But Attorney-General Dorcas Oduor faulted the orders on grounds that they were final in nature with far-reaching implications that could plunge the country into a constitutional crisis.
The AG argued that there was no substantive deputy president in office, yet the Constitution does not envisage a vacuum in the office.
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