32 Petitioners Challenge Kindiki’s Position as Deputy President, Seek Gachagua’s Reinstatement

A fresh legal battle has erupted over Kenya’s Deputy Presidency, with 32 petitioners filing court applications seeking to remove current Deputy President Kithure Kindiki from office and potentially reinstate his predecessor, Rigathi Gachagua.

The petitioners have launched a two-pronged legal strategy that could plunge the country into a constitutional crisis.

First, they are seeking the recusal of the three-judge bench currently hearing consolidated petitions related to Gachagua’s impeachment, citing bias against Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi.

Simultaneously, a separate group of five co-petitioners is pushing for Gachagua’s immediate reinstatement based on what they argue is a still-valid court order from October 18, 2024.

Justice Mwongo of the Kerugoya High Court had originally suspended the Senate’s resolution to impeach Gachagua and blocked the appointment of his replacement.

The petitioners’ argument hinges on a recent Court of Appeal ruling that declared the three-judge bench improperly constituted by Deputy Chief Justice Philomena Mwilu.

According to lawyer Stanley Matiba, representing the petitioners, this ruling renders “all resulting proceedings, including the lifting of Justice Mwongo’s orders and the swearing in of Prof Kindiki void ab initio (from the beginning).”

This legal interpretation suggests that if the original Kerugoya court order suspending Gachagua’s impeachment remains valid, then Kindiki’s appointment and subsequent swearing-in as Deputy President would be constitutionally invalid.

The legal maneuvering raises the unprecedented possibility of Kenya having two individuals with claims to the Deputy Presidency simultaneously – a scenario not contemplated in the Constitution.

The petitioners argue that Kindiki’s continued occupation of the office “undermines the authority of the judiciary, contravenes the Constitution, and erodes public confidence in the rule of law.”

David Mathenge, a ward representative in Kirinyaga County, along with four other co-petitioners, insists that Gachagua’s potential reinstatement transcends personal preference and serves the broader interest of upholding judicial authority and constitutional order.

Notably, Gachagua himself has indicated he is no longer pursuing reinstatement.

Rigathi Gachagua.

His legal team informed the court that he now prefers to have his impeachment quashed entirely and seeks compensation, including unpaid salaries and benefits for the remainder of his term.

However, the five co-petitioners argue that the decision to return to office is not Gachagua’s alone to make, emphasizing that his reinstatement is necessary to preserve the sanctity of court orders.

The 32 petitioners are demanding that the current three-judge panel recuse themselves, arguing they are “irredeemably biased” due to their role in allowing Kindiki’s unconstitutional swearing-in.

They seek an expanded bench of at least five judges to handle what they describe as novel constitutional issues, including allegations that Kindiki was appointed without proper parliamentary vetting and questions about whether he properly resigned from his previous position as Cabinet Secretary for Interior.

The legal drama unfolded as the court reconvened to reorganize hearings of consolidated petitions after Chief Justice Martha Koome regularized the composition of the judicial panel.

The cases now involve complex questions about judicial authority, constitutional succession, and the proper procedures for removing and replacing senior government officials.

The outcome of these proceedings could have far-reaching implications for Kenya’s constitutional order and the independence of the judiciary, particularly regarding the enforcement of court orders involving high-level political disputes.

As the legal process continues, Kenya faces the unusual situation where the legitimacy of its second-highest office remains under intense judicial scrutiny, with competing legal interpretations threatening to create an unprecedented constitutional standoff.​​​​​​​​​​​​​​​​