Nairobi — President William Ruto has filed a preliminary objection to an urgent suit at the Kirinyaga High Court contesting the nomination of Interior Cabinet Secretary Kithure Kindiki as Deputy President, terming the case as flawed.
Lawyer Adrian Kamotho contended that the nomination of Kindiki to replace Rigathi Gachagua, following his impeachment on Thursday, October 17, can only be challenged as a presidential election petition at the Supreme Court.
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He argued that the court sitting, presided over by Justice Richard Mwongo, lacked jurisdiction to determine the case as framed.
"By virtue of Article 165 (5) (a) of the Constitution, the Honorable Court cannot determine the petition as canvassed and/or grant the prayers sought, being a matter reserved for the exclusive jurisdiction of the Supreme Court," Kamotho pleaded.
"The petition, as drawn and filed, contravenes Article 140 as read together with Articles 148 and 149 of the Constitution, which provisions absolutely vest the Supreme Court with the mandate to determine disputes emanating from a presidential electoral process," the lawyer argued.
Kamotho also cited Article 143 of the Constitution, arguing that as Head of State, the constitution grants President Ruto immunity from prosecution, and as such, he cannot be subject to a civil suit.
Article 143 (1) provides that: "Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office."
Article 143 (2) further states: "Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution."
'Defective case'
Kamotho further cited a Supreme Court decision in Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment).
He noted that the court upheld the position that civil proceedings cannot be instituted in any court against the President or a person performing the functions of the President's office during their tenure in respect of anything done or not done under the Constitution.
Kamotho faulted the petitioners, terming their suit "a clear disregard of the law, [and] an abuse of the due process of court."
President Ruto's lawyer asked the court to find the petition "irredeemably defective, null, and void ab initio for breach of mandatory provisions of the law."
President Ruto's objection came a day after Gachagua wrote to the High Court Registrar contesting directives issued by a three-judge bench in Nairobi considering his petition, alleging bias.
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Gachagua contested the circumstances under which Justices Eric Ogolla, Anthony Mrima, and Dr. Fred Mugambi took up the matter.
"There are preliminary indications that the Chief Justice was not even in the country at the material time in question," Gachagua's counsel said in a letter.
He vowed to file a complaint with the Judicial Service Commission on the matter.
Gachagua's lawyers wrote to the Registrar and copied Chief Justice Martha Koome after the three-judge bench directed parties to appear for an inter partes hearing on Tuesday.
Justice Freda Mugambi issued the directive on Saturday amid successive court orders from across the country on the matter.
