The Judiciary faces a major test on whether or not to proceed and swear in Kindiki Kithure as the country’s new Deputy President after Rigathi Gachagua secured orders staying his impeachment.
Legal experts were on Friday split on whether the orders issued by Justice Chacha Mwita had been overtaken by events or they would effectively block Kindiki’s swearing in.
The judge issued orders staying the Senate decision to impeach Gachagua and stopping President William Ruto from appointing his replacement.
However, by the time the order came, Ruto had already nominated Kindiki as his new deputy.
Parliament had also approved Kindiki’s nomination, which was swiftly gazetted by Speaker of the National Assembly Moses Wetang’ula.
The court orders did not stop the swearing in of the new Deputy President. Kisumu Senator and Senior Counsel Tom Ojienda insisted 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.
This is was also the position taken by many other lawyers, including Ahmednassir Abdullahi.
“Appointment’ is what was stopped by Justice Chacha Mwita (and appointment was made before the court order)…not swearing in. So tomorrow’s swearing in can go ahead,” Ahmednassir said.
However, other legal experts said Chief Justice Martha Koome must look at the intent of the court order before accepting to swear in Kindiki as the new DP. Justice Chacha put Koome in even a more testing position, asking the CJ to constitute a three-judge bench to hear Gachagua’s case on Thursday.
In the conservatory orders, Mwita said Gachagua’s application had raised “substantial questions of law and public interest”.
The state now has the option of halting the swearing-in ceremony 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 court orders.
He was planned to attend this year’s Mashuja Day celebrations in Kwale County on Sunday as the country’s second-in-command.
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.
The judicial orders threatened to stop song and dance in his home village of Irunduni Tharaka Nithi county. Residents were excited their son had been nominated to the second highest office on land.
