An activist, Joseph Enock Aura, has filed a petition at the Milimani High Court seeking to quash Prof Kithure Kindiki’s recent appointment and swearing-in as Kenya’s Deputy President.
In the 215-page petition, Aura argues that the process leading to Kindiki’s swearing-in on Friday, November 1, 2024, was a “sham” and unconstitutional.
Aura claims that Kindiki was illegally appointed, and his installation into office violates several provisions of the Kenyan Constitution.
Represented by lawyer Harrison Kinyanjui, Aura’s case challenges the legality of Kindiki’s appointment on multiple fronts.
At the heart of the petition is the claim that Kindiki continues to serve as Cabinet Secretary for the Ministry of Interior, and he has not been officially gazetted to have vacated that position.
According to Article 137(2)(b) of the Constitution of Kenya, no person can be appointed Deputy President unless they cease holding another public office, such as the CS position.
“To date, Kindiki remains the CS for Interior, as no official gazette notice has been published to indicate he has stepped down from this role,” Aura contends.
As a result, Aura argues that Kindiki’s nomination and subsequent swearing-in as Deputy President were illegal. He further emphasizes that the failure to fulfill this constitutional requirement renders Kindiki’s appointment void and of no effect.
Aura further contends that the process leading to Kindiki’s appointment lacked transparency and was marred by legal irregularities.
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.
Under Kenyan law, the assumption of the office of Deputy President requires the declaration of a public holiday, an action that was not taken in this case. This omission, according to Aura, renders the swearing-in ceremony unconstitutional.
He claims 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.
Aura’s petition also targets the appointment of Musalia Mudavadi, the current Cabinet Secretary for the Ministry of Interior, who was appointed to act in Kindiki’s place in late October 2024.
The petitioner points out that President William Ruto issued Executive Order No. 5 of 2024, which purportedly appointed Mudavadi to act as CS for Interior in Kindiki’s absence.
However, Aura notes that the same Executive Order had already been issued in July 2024 for a different purpose and could not lawfully be used to justify Mudavadi’s appointment in this context. This, according to Aura, further undermines the legal standing of Kindiki’s swearing-in.
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.
Aura’s legal challenge further disputes the Speaker of the National Assembly’s actions, particularly the publication of Gazette Notice No. 13401 on October 18, 2024, which declared that the Deputy President’s position was vacant.
Aura argues that only the IEBC has the constitutional authority to declare the vacancy of the Deputy President’s office, not the Speaker or the National Assembly. He insists that any decision made by the National Assembly in this regard was beyond their powers and unconstitutional.
The activist’s petition also calls into question the impeachment proceedings against former Deputy President Rigathi Gachagua.
Aura claims that the motion for Gachagua’s impeachment, tabled in the National Assembly on September 26, 2024, was unconstitutional. He argues that the motion was flawed because it contained signatures from 8 MPs who had withdrawn their support.
The activist argues that such a motion, 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 and that he should be prohibited from assuming any powers or duties associated with the office.
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, which has garnered significant attention, emphasizes the need for transparency, public participation, and strict adherence to constitutional procedures in the appointment of high-ranking government officials.
Justice Bahati Mwamuye on Wednesday granted Kindiki, President Ruto, Gachagua, Attorney General Dorcas Oduor, Chief Justice Martha Koome, National Assembly, Senate, IEBC, and Kibwezi West MP Mwengi Mutuse until close of business November 12 to file their responses to the lawsuit.
The case will be heard on December 16,2024.
