- A businessman appealed court’s decision rejecting a five-judge bench to hear Deputy President Kithure Kindiki’s case
- Judges ruled that the previous court decisions already addressed the issues raised in the appeal against Kindiki’s legitimacy
- The case highlights potential constitutional crisis if President Ruto becomes incapacitated while Kindiki’s status remains unresolved
Amos Khaemba, a journalist at TUKO.co.ke, brings over four years of experience covering politics and current affairs in Kenya.
Nairobi – A businessman has escalated the legal battle to remove Deputy President Kithure Kindiki from office by filing a Notice of Appeal after a three-judge bench today threw out his application, in which he is requesting for a five-judge bench to hear the dispute tied to Rigathi Gachagua’s impeachment.
Source: Facebook
Justices Eric Ogolla, Anthony Mrima, and Wilfrida Mugambi instead ruled that the issues raised by Joseph Aura had already been addressed in previous rulings by competent courts.
What court ruled in case seeking to oust Kindiki
“Disputes touching on the legality and propriety of that empanelment were raised before competent courts which culminated in the Court of Appeal.The issue of recusal of the present bench was previously raised, considered, and determined.The present application, though framed differently, is in substance a renewed attempt to reopen the issues conclusively determined.This Court cannot accede to such an invitation,” the Court stated on Thursday, March 19.
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In his amended petition, Aura through lawyer Harrison Kinyanjui, wanted an expanded five-judge bench to hear the amended petition, arguing that the matter raises weighty constitutional questions requiring broader judicial scrutiny hitherto not canvassed by any court, as the peculiar circumstances of the appointment of Kithure Kindiki as deputy president under the current constitution had never been canvassed before and are of great public interest.
“For the reasons stated in the body of the motion, as well as the supporting affidavit, that substantial issues of law have been raised in the amended petition, warranting your Lordship’s consideration for a certification for a five-judge bench, this application is warranted,” Aura stated.
However, the three judges, led by Justice Ogolla, maintained that their bench was properly constituted and declined to certify the matter as warranting an expanded bench as sought.
“We make the following specific orders. One, the Notice of Motion dated 28th of May 2025 is hereby dismissed in its entirety. Two, the prayer seeking referral of the Amended Petition to the Honourable the Chief Justice for empanelment of an expanded bench and for the recusal and the constitution of the present bench are denied,” Ogolla ruled.
The trio further declined to grant a stay of proceedings in the related but separately heard consolidated petitions and insisted that the matter will proceed for hearing and determination before the present bench. And lastly, they ordered that the petitioner shall pay the cost of the proceedings to the respondents.
What petitioner raised in Kithure Kindiki’s case
Immediately after the ruling, Kinyanjui asked for leave to file an appeal to the Court of Appeal, arguing that his client may never get a chance to be heard at a later date in a just and fai r manner.
“Now, my client is very apprehensive about the clear, and the unequivocal injustice that he will be visited with. The clear prejudice is that the guillotine of res judicata will cut him off from the ventilation of issues which that other bench may decide.
The position of the Petitioner, his expectation, legitimate, I might add, was that the issues that are cross-cutting, similar on every score, like the impeachment, for instance, the proprietary errors, the unconstitutionality, should have, would have been, and could have been far more justly dealt together with the consolidated Petitions,”, Kinyanjui stated.
In the Amended Petition, Aura argues that Kithure Kindiki was sworn in as deputy president outside constitutionally set parameters and is in office illegally because he did not resign from the CS Interior office at the time he was purportedly appointed as the deputy president, and at a time there was no IEBC constituted to declare the seat of the deputy president vacant.
Aura maintains that no gazettement of Kindiki’s cessation as a CS was ever made (to date); a move which stands in violation of Article 137(2)(b) of the Constitution of Kenya as read with Section 6 of the Public Appointments (Parliamentary Approval) Act.
He further stated that he had formally written to Chief Justice Martha Koome seeking expansion of the current bench shortly after a Court of Appeal judgement was delivered on May 9, 2025 dissolving the earlier-constituted bench under the hand of the deputy chief justice in the consolidated petitions, thus nullifying everything done earlier on the consolidated petitions.
“The Chief Justice responded through a letter dated January 23, 2025 directing that the request be pursued before the trial court. The request to expand the subsisting bench or otherwise reconstitute it altogether should be made before the trial court. This will afford the other parties an opportunity to respond and the court to make a determination,” Kinyanjui read from the Chief Justice’s communication.
Source: AFP
What the petitioner said about William Ruto
He added that his client’s application strictly followed the directives issued by the Chief Justice under her powers conferred by Article 161(2)(a) of the Constitution.
In court papers, Aura argues that if President William Ruto were declared mentally or otherwise unfit to hold office any time now, the country could face a major constitutional crisis faced with an unconstitutionally appointed Deputy President.
He noted that if the president were to become incapacitated or be deemed unfit while the case is still ongoing, Article 146(2)(a) of the Constitution would be triggered immediately, ushering in the occupation of the president’s office and the unconstitutionally appointed deputy president.
The matter will now be mentioned on April 23 this year for further directions.
Additional reporting by Zipporah Weru, TUKO.co.ke correspondent.
Source: TUKO.co.ke
