Gachagua Seeks Injunction to Halt Kindiki’s Swearing-In After Lifting of Conservatory Order
Rigathi Gachagua has filled a motion with the High Court to request a temporary injunction following the recent lifting of conservatory orders that had prevented Kithure Kindiki’s swearing-in as Deputy President. This oral application came after a ruling from a three-judge panel—Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi. The judges highlighted that a prolonged vacancy in the Deputy President’s office could threaten constitutional provisions and jeopardize public interest.
Gachagua’s legal team argues for the reinstatement of the conservatory orders. They contend that swearing in Kindiki without a thorough review could undermine due process. Advocate Ndegwa Njiru raised concerns about Kindiki’s eligibility, asserting that the Independent Electoral and Boundaries Commission (IEBC) had not cleared him. He cautioned that appointing someone without proper verification could compromise legal processes and public accountability.
Njiru posed a critical question to the bench: “If Kithure Kindiki is sworn in tomorrow, what impact will it have to swear in someone who has not been verified and approved by the proper organ?”
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Senate Counsel Tom Ojienda countered Gachagua’s arguments, asserting that the issue was “res judicata.” He explained that since the court had already ruled on the conservatory orders, it could not revisit the matter. “Ordinarily, when a court delivers a ruling on a matter, it becomes functus officio regarding that particular matter,” Ojienda emphasized. He insisted that the applications were therefore res judicata because the court had made a determination.
Lawyer Muthomi Thiankolu supported Ojienda’s stance, criticizing any attempts to overturn previous decisions. He warned that such actions could turn the judiciary into a “pendulum,” susceptible 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 stated, highlighting the risk of eroding judicial stability and public confidence.
The Kerugoya Court had initially issued the conservatory order two weeks prior after President William Ruto nominated Kindiki to replace Gachagua following his impeachment. In their judgment, the bench found the conservatory orders unsustainable, stressing the necessity of filling the Deputy President’s position promptly under Kenya’s post-2010 constitutional framework.
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“The court disallowed the applications for conservatory orders. The conservatory orders of October 18, 2024, in Kerugoya High Court are hereby discharged,” the judges ruled. They clarified that extending the conservatory orders would leave the office vacant without reinstating Rigathi Gachagua as Deputy President.
The Justice Ogola-led bench emphasized that under Kenya’s current Constitution, no official including the President or the Speaker of the National Assembly can fulfill the Deputy President’s duties. Therefore, they determined that a prolonged vacancy in this critical role would be untenable. “We are convinced that the current constitutional framework does not envision any scenario in which the office of the Deputy President would remain vacant except during the brief period required to fill a vacancy,” the bench ruled. They added that continued conservatory orders would effectively suspend constitutional provisions related to the Deputy President’s exclusive functions, violating the Constitution.
In conclusion, Rigathi Gachagua’s legal battle highlights the complex dynamics surrounding the Deputy President’s office. The High Court’s decision impacts not only Gachagua and Kindiki but also raises significant questions about constitutional integrity. This ruling also affects public trust in Kenya’s political processes.
Gachagua Seeks Injunction to Halt Kindiki’s Swearing-In After Lifting of Conservatory Order.
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