High Court lifts orders barring swearing-in of Kithure Kindiki as Deputy President

The High Court in Nairobi has lifted conservatory orders that had previously halted the appointment and swearing-in of Kithure Kindiki as the Deputy President, replacing Rigathi Gachagua who was impeached.

A three-judge bench of Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi made the ruling on Thursday afternoon, emphasising the urgency of filling the deputy president’s vacancy.

Justice Anthony Mrima emphasised the constitutional necessity of keeping the deputy presidency occupied.

"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," Mrima said.

The bench ruled that the conservatory orders issued on October 11 by the High Court in Nairobi and Kerugoya were no longer relevant.

“The applications for conservatory orders are hereby disallowed. The conservatory orders on October 18, 2024, in Kerugoya High Court are hereby discharged and set aside,” Justice Eric Ogolla ruled.

This decision follows presentations from the National Assembly’s legal team, led by former Attorney General Githu Muigai, who argued that the vacancy needed immediate attention.

“The office of the deputy president is vacant, and the conservatory order has been overtaken by events,” Muigai asserted.

"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 [provided] to parties at costs. We will mention this matter on November 6," stated Justice Ongola.

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

Gachagua had, however, urged the court to reject the application, stating that if this happens, it would be politically fatal for him as he will 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, and once the office of the DP is filled, it would be impossible to remove 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 law.

"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 the 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 of the president.

"When the office of the DP becomes vacant, any functions that were assigned to the DP automatically revert 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 Kindiki’s swearing-in means such duties cannot be performed by anyone.

Kindiki’s swearing-in is now expected to proceed without further delays.