NAIROBI, Kenya, Oct 23 — The Attorney General has asked the three-judge bench hearing petitions challenging the impeachment of Rigathi Gachagua to vacate conservatory orders staying his removal terming an application for status quo as nonjusticiable.
Senior Counsel Githu Muigai, appearing for the Attorney General, moved the court to vacate orders following the Senate’s impeachment resolution on October 17 citing the need to secure “certainly, predictability and stability”.
Prof Muigai held that the orders staying the nomination and National Assembly’s vote confirming Kithure Kindiki’s nomination as Deputy President was overtaken by events and that the courts had “nothing to conserve”.
He told Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi a sustained conservatory order would trigger a constitutional crisis and contravene Article 145 (7) of the Constitution.
“Public interest is in continuity,” Prof Muigai submitted in oral arguments on Tuesday.
Supporting Muigai’s arguments, Senior Counsel Tom Ojienda told the court to discarge the conservatory order in order to avoid a standstill.
Prof Ojienda cited the Meru High Court decision that reinstated Governor Mohamed Abdi Mohamud and ordered Ahmed Ali Muktar who had assumed as Governor to resume his previous role as Deputy Governor.
He argued that public interest would tilt in the favour of lifting the conservatory order since the court would still remedy the situation, as was in the Wajir case, if it overturns Gachagua’s impeachment.
In the Wajir impeachment decision rendered in February 2022, a three-judge bench sitting in Meru directed Muktar to cede office within twelve days to allow Mohamud’s transition back into office.
“A declaration that the 8th respondent Ahmed Ali Muktar remains the Deputy Governor for the remainder of the current term of the Office of Governor of County of Wajir,” Justices Edward Muriithi, Patrick Otieno and Wamae Cherere ordered.
‘Hurried impeachment’
During proceedings before the Justice Ogola-led bench on Tuesday, Gachagua’s counsel moved the court to decline an invitation to review conservatory orders suspending an impeachment resolution against their client citing the need to protect his rights.
Gachagua’s lawyers led by Senior Counsel Paul Muite and lawyer Elisha Ongoya argued that orders suspending Gachagua’s removal as Deputy President, and the nomination and appoitment of his replacement are well within the confines of the law.
Ongoya singled out President William Ruto’s “hurried” nomination of Kithure Kindiki as Deputy President and the subsequent National Assembly vote on October 18 as “unprecedented”.
He questioned whether President Ruto obtained clearances with regards to Kindiki’s nomination in anticipation of the Senate resolution.
“Considering the unprecedented hurry to impeach Gachagua, I thought the country had become super-efficient,” he argued citing Senate’s conclusion of the impeachment trial on Thursday night, October 17.
“However, I discovered that we are still waiting a long time for IDs, passports and queuing in hospitals for health services,” Ongoya told the bench.
Gachagua’s lawyers cited Article 23 which empowers the High Court “to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”.
The lawyers held that a review of conservatory orders, as sought by the Attorney General, will prejudice Gachagua’s rights.
