Impeached Deputy President Rigathi Gachagua will today know whether a three-judge Bench will set aside orders that stopped Interior Cabinet Secretary Prof. Kithure Kindiki from being sworn in as the Deputy President.

Judges Eric Ogola, Antony Mrima and Freda Mugambi will make their ruling after both parties submitted their cases.

Gachagua through his lawyers led by Senior Counsel Paul Muite and Dr John Khaminwa urged the Bench to extend conservatory orders preventing Kindiki from assuming office as the new DP.

Gachagua wants the court to find that Kenya’s Constitution offers both hope and promise and that the docoment is supreme.
The lawyers argued that none of the 50 million Kenyans was called to consider the suitability of Kindiki to hold the office of Deputy President.

Ventilate impeachment

In responding to the allegations that the High Court has no jurisdiction to ventilate on his impeachment as alleged by the National Assembly lawyers, Gachagua informed the court that it has unchallenged jurisdiction to check the impeachment process at whatever level.

“The greatest public interest is upholding our Constitution, there is no superior public interest that outweighs upholding the Kenyan Constitution,” submitted Gachagua’s lawyer Elisha Ongoya.

Gachagua has maintained that he was condemned by the Senate unheard and urged the court to find that Kenya is not a Presidential or Legislative democracy but a constitutional democracy and that the constitution was never followed during his impeachment process.

He told the court that unlike what happened at the National Assembly, those accorded power to lead by the constitution can only exercise those powers within the four corners of the law.

“Those who want the DP out, let us assume he is kicked out. They will be the same people who will come and say President Ruto you must go. That will be opening chaos in the country. My lords, I am saying to you very respectfully, please do not try to lift the conservatory order as my learned friends are asking,” veteran Khaminwa told the court.

He added that currently, the poll rating of our DP is 70 percent in the country and has won a lot of sympathy votes from those who didn’t even like him.

It will be devastating for this court to proceed and lift the conservatory order and bring in Prof Kindiki as DP. I don’t know much about Prof Kindiki, I have nothing against him, he has never wronged me and I don’t think he has ever said anything anywhere against me. All that we are interested in at the moment is to make sure that we have one country, he added.

Conservatory orders

The Senate, however, urged the court to set aside the conservatory orders and allow the country get a new Deputy President.
Prof Tom Ojienda told the court that Gachagua and his lawyers were given a chance to defend him in the Senate by being allocated two hours but he failed to appear. The court heard it was later said that he was hospitalised.

“No documents were produced to show that he was sick”, Ojienda said.

Lawyer Muthomi Thiankolu said the Constitution says that the Senate can vote to retain a President found by a medical tribunal to be insane and that decision cannot be challenged in any court or tribunal.

Former Attorney General Prof Githu Muigai, representing the Attorney General stated.

“The Constitution recognises that it has donated power to several other institutions, our Constitution has self-correcting provisions, we urge the court to vacate the orders preventing Kindiki from taking office and in the event the court finds Gachagua was wrongly impeached then the Executive will be ready to reverse Kindiki’s nomination”, said Muigai.

He added that the Senate speaking through the people under Article 1 of the constitution was the trial chamber, the Deputy President was accorded an opportunity to be heard but his entire legal team walked out of senate, senate then proceeded to vote.
“ Gachagua deliberately decided to sabotage his own appearance before senate”, the Senate said.