The High Court in Nairobi on Thursday lifted the conservatory orders that stopped the appointment and swearing-in of Kithure Kindiki as the deputy president replacing Rigathi Gachagua.
The three-judge bench consisting of Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi noted that staying the conservatory orders would immensely hamper the operations of the government as mandated by the constitution.
According to Justice Anthony Mrima, the public interest and constitutional provision demanded that the office of the deputy president should not remain vacant.
"We are convinced and find that the current constitutional framework does not envision any scenario in which the office of the DP would remain vacant except during the brief period required to fill a vacancy," noted Justice Anthony Mrima.
"The applications for conservatory orders are hereby disallowed. The conservatory orders on October 18, 2024, in Kerugoya High Court are hereby discharged and set aside," Justice Eric Ogolla pronounced.
The ruling comes after lawyers representing the National Assembly led by former Attorney General Githu Muigai urged the three-judge bench to lift the conservatory orders to pave the way for a swearing-in.
While addressing the court, lawyer Githu Muigai argued that the office of the deputy president was vacant and that the conservatory order had been overtaken by events.
Githu Muigai's sentiments were backed by lawyer Tom Ojienda who noted that staying the conservatory orders would create a discontinuity in the operations of the government. "The orders fly in the face of public interest because there shouldn't be an interregnum. The wider public interest is greater than one man," Ojienda stated.
On October 11, the High Courts in Nairobi and Kerugoya issued conservatory orders stopping the appointment and swearing-in of Kithure Kindiki as the DP.
Justice Chacha Mwita in his ruling, observed that the petition filed by Gachagua's legal team raised critical constitutional issues affecting not only the functioning of the constitution but also the fundamental tenets of the law.
The judge also noted that the petition raised substantial questions of law and public interest and therefore fit to be heard by a bench of judges appointed by Chief Justice Martha Koome.
"That in the meantime, due to the issues raised in the petition and application, and the urgency demonstrated, a conservatory order is hereby issued staying implementation of the resolution by the Senate upholding the impeachment charges against the petitioner, the Deputy President of Kenya," the orders read.
