NAIROBI, Kenya, Oct 31 – The High Court has rejected an application by former Deputy President Rigathi Gachagua seeking a temporary stay on its earlier order that lifted conservatory orders, effectively clearing the way for Kithure Kindiki to be sworn in as the new Deputy President.
This decision follows a Thursday ruling by a three-judge bench—Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi—which highlighted that any prolonged vacancy in the Office of the Deputy President could disrupt constitutional continuity and public interest.
Despite attempts by Gachagua’s legal team to retain the conservatory orders, the bench refused to review its judgment, advising the applicants to pursue an appeal instead.
Gachagua’s legal counsel, Advocate Ndegwa Njiru, argued that moving forward with Kindiki’s swearing-in could undermine due process, especially given that the Independent Electoral and Boundaries Commission (IEBC) had yet to verify Kindiki’s eligibility. Njiru warned that bypassing this verification could jeopardize legal and public accountability.
“If Kithure Kindiki is to be sworn in tomorrow, what will be the impact of swearing in someone who has not been verified and approved by the proper organ?” Njiru questioned the bench.
Countering Njiru’s stance, Senate Counsel lawyer Tom Ojienda asserted that the case was now “res judicata,” meaning the court’s ruling on conservatory orders had made it functus officio, stripping it of the power to revisit the matter.
“When a court delivers a ruling on a matter, it becomes functus officio regarding that particular matter,” argued Ojienda, indicating the decision could not be altered.
Echoing these sentiments, Lawyer Muthomi Thiankolu criticized any attempt to overturn the ruling, likening it to turning the judiciary into a “pendulum,” subject to inconsistent decisions. He cautioned that such a move could undermine judicial stability and public confidence.
“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,” Thiankolu remarked, emphasizing the importance of consistent judicial decisions.
The conservatory order blocking Kindiki’s swearing-in had originally been issued by the Kerugoya Court on October 18, following President William Ruto’s nomination of Kindiki as Deputy President after Gachagua’s impeachment. However, the High Court’s recent judgment deemed these orders unsustainable, stressing that the Deputy President’s office should not remain vacant for extended periods as per the post-2010 Constitution.
“The applications for conservatory orders are hereby disallowed. The conservatory orders issued on October 18, 2024, in Kerugoya High Court are hereby discharged,” ruled the three-judge bench.
The court underscored that neither the President nor any other government official can perform the duties of the Deputy President, making it imperative to fill the position promptly to maintain constitutional integrity.
The bench concluded that any further delay in swearing in Kindiki would contravene the Constitution, as prolonged conservatory orders would effectively suspend the Deputy President’s exclusive constitutional functions.
Stay tuned for updates as Kithure Kindiki’s swearing-in is set to proceed as scheduled, marking a significant transition in Kenya’s executive leadership.
