The decision by the High Court to suspend the impeachment of Rigathi Gachagua as Deputy President has thrown plans to swear in Interior Cabinet Secretary Kithure Kindiki into disarray.
The state now has the option of halting the swearing-in ceremony plans until the case filed in court is heard and determined or moving to court to seek orders to suspend the injunction.
Initial plans were to have Kindiki sworn in as Deputy President at Kasarani Stadium, or KICC, on Saturday morning before the Friday afternoon order.
He was then planned to attend this year’s Mashuja Day celebrations in Kwale County on Sunday as the country’s second in command.
Kisumu Senator and Senior Counsel Tom Ojienda insisted that the order had been overtaken by events.
“The Order is overtaken by events coming after the proper nomination and appointment of Professor Kithure Kindiki,” Ojienda wrote on his X account.
President William Ruto’s Senior Economic Adviser Moses Kuria also supported the argument that the order was belated.
“‘The appointment had been done. Justice Mwita’s orders as sought by the immediate former Deputy President are overtaken by events. Congratulations H.E Abraham Kithure Kindiki,” Kuria wrote on his X account.
National Assembly Speaker Moses Wetang’ula swiftly gazetted Kindiki’s approval moments after the House approved his nomination as deputy president.
The gazettement means that Kindiki is the country’s deputy president-elect awaiting his swearing-in.
Plans by state machinery were reportedly at advanced levels to prepare for Kindiki’s swearing before Justice Chacha Mwita issued orders on Friday afternoon.
Justice Mwita also halted the appointment of Gachagua’s successor until October 24, long after Kindiki had been approved by the MPs.
He certified the application filed by his Advocate Senior Counsel Paul Muite as urgent and remitted the file to Chief Justice Martha Koome.
Koome will now appoint a bench that will hear and determine the weighty constitutional issues raised by Gachagua.
“In the meantime, a conservatory order is issued suspending the Senate’s resolution to uphold the impeachment charges against the Deputy President,” Justice Mwita ordered.
With the law requiring that the swearing-in of a deputy president should be presided over by the Judiciary, it would be unlikely that Saturday’s ceremony would proceed.
This is because Chief Justice Martha Koome, who has been asked to form a bench to hear Gachagua’s application, is the one required by law to swear in a deputy president.
Only in exceptional circumstances where the Deputy Chief Justice step in to swear in a deputy president.
The law provides that the Deputy President-elect shall take and subscribe to the oath or affirmation of allegiance and oath or affirmation for the execution of the functions of office in accordance with Article 148 of the Constitution.
Article 148(4) provides that the swearing-in of the Deputy President-elect shall be before the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice and in public.
Saboti MP Caleb Amisi cautioned the State to respect the court order.
“To be safe, just obey the court order. The country needs sobriety. He will still go home anyway, so send him the right way,” Amisi posted on his X account. But Homa Bay Town MP Peter Kalum said the former DP delayed seeking orders after impeachment.
“The new Deputy President already nominated and voted into office by Parliament. President has appointed DP. Orders overtaken by events & can plunge Kenya into a constitutional quagmire and instability,” he posted on his X account.
