A fresh wave of petitioners is now demanding Rigathi Gachagua’s immediate reinstatement as Deputy President, arguing that a High Court order blocking his removal remains valid and must be upheld.
32 petitioners have moved to disqualify Justices Eric Ogolla, Anthony Mrima, and Fridah Mugambi from presiding over the case. They claim the judges are biased and cannot impartially rule on the matter due to their previous involvement in allowing Prof Kithure Kindiki to be sworn in as Deputy President.
The call for their recusal surfaced as the court resumed proceedings to restructure the hearing of the consolidated petitions. This came after Chief Justice Martha Koome stepped in to regularize the empaneling of the judicial bench.
One of the petitioners, Joseph Enock Aura, has gone a step further, requesting that the case be referred back to the Chief Justice to appoint an entirely new bench of at least five judges, explicitly excluding Ogolla, Mrima, and Mugambi.
“In allowing the swearing-in of Prof Kindiki as Kenya’s Deputy President unconstitutionally, Justices Ogolla, Mrima and Mugambi stand tainted and irredeemably biased, as the said judges cannot shift their hitherto expressed position on this issue,” Aura argued through his lawyer, Harrison Kinyanjui.
Aura also raised concerns about critical constitutional questions at the heart of the case. Among them: Was Kindiki lawfully appointed without parliamentary vetting? And did he ever officially resign as Cabinet Secretary for Interior before assuming his current office?
Petitioners Argue Gachagua Still Legally Deputy President
While this group seeks a broader bench to deliberate the high-stakes matter, another group of five co-petitioners insists that Gachagua must be reinstated, citing a legally binding court order issued in October 2024.
According to these co-petitioners, the High Court in Kerugoya, under Justice George Vincent Odunga, suspended Gachagua’s impeachment and barred the appointment of a new Deputy President. Though a separate three-judge bench later overturned that ruling, the petitioners argue that the original order still stands and must be enforced.
Their position gained traction after a recent ruling by the Court of Appeal found that the three-judge panel assigned by Deputy Chief Justice Philomena Mwilu had been improperly constituted. This, the petitioners argue, invalidates all proceedings that followed, including the lifting of the suspension and the swearing-in of Prof Kindiki.
“The Court of Appeal quashed the empanellment orders of the Deputy Chief Justice, rendering all resulting proceedings, including the lifting of Justice Mwongo’s orders and the swearing in of Prof Kindiki, void ab initio,” explained lawyer Stanley Matiba, representing the five co-petitioners.
Matiba argued that this legal interpretation restores the original October 2024 ruling, thereby making Gachagua the rightful Deputy President once again.
Gachagua Seeks Compensation
However, this legal challenge is now colliding with a strategic shift in Gachagua’s own position. Just last week, his legal team told the court that he is no longer seeking reinstatement. Instead, Gachagua wants his impeachment declared unlawful and seeks financial compensation for the remainder of his term.
Even so, the five co-petitioners insist that the issue goes beyond personal preference. To them, the matter is one of law, institutional integrity, and the preservation of constitutional order.
“Despite the judgment of the Court of Appeal, Prof Kindiki continues to act as Deputy President and perform the functions of the office in direct contravention of subsisting court orders,” Matiba stated.
In response, Matiba has filed an urgent application seeking immediate orders to bar Kindiki from continuing in the role until the court settles the matter.
“The continued occupation of that office by Prof Kindiki undermines the authority of the Judiciary, contravenes the Constitution, and erodes public confidence in the rule of law and fidelity to judicial process,” he added.
As of Monday, the court had not ruled on any of the latest applications.
