Chief Justice Martha Koome is expected to empanel a bench of judges to hear a petition seeking the removal of deputy president Kithure Kindiki.
The move comes after High Court judge Bahati Mwamuye forwarded the file to her office yesterday to enable her appoint judges in a petition lodged by activist Joseph Enock Aura, seeking to quash Kindiki’s appointment.
“I am satisfied that this petition raises serious, substantial, and novel issues that require consideration by an odd number of judges, to be assigned by the Chief Justice,” Justice Mwamuye ruled.
The case has also been certified as urgent and is set to be mentioned before the new bench for further directions before January 25, 2025 when over 40 cases challenging former Deputy President Rigathi Gachagua is set to kick off for hearing before a three-judge bench comprising of Eric Ogolla, Anthony Mrima, and Fridah Mugambi.
In his 215-page petition in the Milimani High Court, Aura seeks an order to prevent Kindiki from further performing any duties related to the Deputy President’s office, describing the appointment as a “sham” lacking any lawful basis.
He contends that Kindiki’s appointment and subsequent ascension into the Office of the Deputy President of the Republic of Kenya on November last, was unconstitutional and violated key law provisions.
Represented by lawyer Harrison Kinyanjui, Aura’s case calls into question the legality of the appointment on multiple fronts, including procedural flaws and alleged violations of constitutional principles.
In addition, Aura raises concerns about the lack of transparency surrounding the entire process. He highlights the fact that a public holiday was not officially declared for November 1, 2024, the day Kindiki was purportedly sworn into office.
The petitioner further contends that the events leading up to Kindiki’s installation were conducted secretly, without the necessary public engagement and legal procedures, in violation of the principles of transparency as enshrined in Article 10 of the Constitution.
In addition to the legal irregularities surrounding Kindiki’s appointment, Aura also questions the validity of the vetting process conducted by the National Assembly.
He asserts that there was no formal letter from the Independent Electoral and Boundaries Commission (IEBC) confirming Kindiki’s eligibility for the Deputy President’s position.
According to Aura, the IEBC could not have issued such a letter between the night of October 17 and the morning of October 18, 2024, when Kindiki’s nomination was tabled before Parliament. Without this letter, Aura claims, Kindiki’s nomination was not valid, and the entire vetting process should be deemed unconstitutional.
In his petition, Aura also references the broader implications of the National Assembly’s actions, including the impeachment proceedings against Deputy President Rigathi Gachagua.
Aura claims that the motion to impeach Gachagua, tabled in the National Assembly in September 2024, was flawed because it contained signatures from MPs who had withdrawn their support for the motion.
The activist argues that such a motion by Kibwezi West MP Mwengi Mutuse, which did not meet the necessary legal requirements, was also unconstitutional.
Aura seeks several declarations from the court, including that Kindiki’s appointment as Deputy President was unconstitutional.
He also calls for a declaration that the National Assembly’s approval of Kindiki’s nomination was unlawful, both due to procedural flaws and the lack of public participation, a key requirement under the Constitution.
The petition also highlights the broader issues of governance and public participation, asserting that the nomination and approval of a Deputy President should not be a closed-door process.
