Opinion is divided on the status of Interior Cabinet Secretary Kithure Kindiki appointment as Deputy President amid debate on whether a court order restraining National Assembly from considering his nomination was overtaken by events.
Rigathi Gachagua on Friday secured orders from Justice Chacha Mwita suspending Senate’s resolution impeaching him on Thursday with the judge restating the National Assembly from considering a replacement.
Mwita’s decision was followed by a similar declaration by a judge in Kerugoya with both Justices referring the suits to Chief Justice Martha Koome to constitute a bench.
Lawyers however differed on the effect of the decisions having emerged after the National Assembly had concluded a session to consider Kindiki, an exercise that the orders sought to halt.
National Assembly Speaker Moses Wetangula had also gazetted the outcome of the process paving way for Kindiki’s swearing in.
“The Order is overtaken by events coming after the proper nomination and appointment of Prof Kithure Kindiki,” Senior Counsel Tom Ojienda held.
“Appointment is what was stopped by Justice Chacha (and the appointment was made before the court order) …. not ‘swearing in’…so tomorrow’s swearing ceremony can go ahead…I have blessed it!” Senior Counsel Ahmednasir Abdullahi remarked.
Koome’s role
Lawyer John Wageche however differed with the duo holding the orders would still apply as long as Kindiki had not been sworn in.
“The appointment of the replacement is itself a mini-process ending with the swearing in of the prospective appointee. As long as he has not been sworn in, it follows that the Orders are applicable to the remainder of the process.”
Article 148 (4) requires the Chief Justice to preside over the swearing in of the Deputy President-Elect or the Deputy Chief Justice in the absence of the CJ.
With the law placing Chief Justice Martha Koome at the center of the inauguration exercise, lawyers agree she will have the final word on the impasse.
It remained unclear if the State had extended an invitation to Koome to preside over Kindiki’s swearing.
It was also unclear if the Chief Justice’s office had received requests by two High Court judges to constitute a bench to hear suits contesting Gachagua’s removal.
