Blow to Gachagua as court gives leeway for Kindiki swearing-in

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Deputy President designate Kithure Kindiki. PHOTO/Courtesy

Designated Deputy President Kithure Kindiki will now fill the office of the DP after the High Court set aside conservatory orders stopping his swearing-in.

Judges Eric Ogola, Anthony M’rima and Freda Mugambi dismissed Gachagua’s application for conservatory orders and discharged those issued by the Kerugoya court.

“The application for conservatory orders is hereby disallowed and those issued by Kerugoya Court are hereby discharged,” Justice M’rima ruled.

The three-judge bench further ruled that is has jurisdiction to the petition since the jurisdiction to hear impeachment of the President and the Deputy President does not solely lie with the Supreme Court.

In addition, the judges said the current constitutional framework does not allow the office pf the Deputy President to be left vacant unlike in the 1963 constitution.

“In the 2010 constitution, there are powers delegated specifically to the Deputy President in addition to those assigned to him by the President. In the current constitution, the powers delegated to the Deputy President can not be delegated to any other person,” the bench ruled.

The judges were also satisfied that the consolidated petitions raise constitutional issues for determination.

On the issue of public interest, it was the judges’ finding that public interest favours giving way to the constitution which is the will of the people.

Gachagua’s lawyers had argued that he would suffer prejudice should the court allow Kindiki’s swearing-in.

In this regard,  the bench noted that an individual can not suffer loss or damage if the constitution is upheld.

In addition to the issue of prejudice, the petitioner had also raised the issue of the respondents not obeying court orders claiming that should Kindiki take the DP job, there is a likelihood that he would not vacate should the court rule otherwise.

However, the judges ruled that the court can not operate under the assumption that its orders will be disregarded.