Rigathi Gachagua has asked the High Court to temporarily stay its order lifting conservatory orders that had blocked the swearing-in of his successor, Kithure Kindiki.
The oral application followed a Thursday ruling by a three-judge bench--Justices Eric Ogola, Anthony Mrima, and Dr. Freda Mugambi--who stated that a prolonged vacancy in the Office of the Deputy President could undermine constitutional provisions and harm public interest.
Gachagua's legal team argued for maintaining the conservatory orders, suggesting that swearing in Kindiki without further review could undermine due process.
Advocate Ndegwa Njiru contended that the Independent Electoral and Boundaries Commission (IEBC) had not cleared Kindiki, raising questions about his eligibility.
He warned that an unverified appointment could compromise legal procedures and public accountability.
"If Kithure Kindiki is to be sworn in tomorrow, what will be the impact of swearing in someone who has not been verified and approved by the proper organ?" Njiru posed to the bench.
Senate Counsel lawyer Tom Ojienda countered, asserting that the matter was "res judicata" and the court, having ruled on the conservatory orders, was now functus officio, thus lacking the power to revisit the issue.
"Ordinarily, when a court delivers a ruling on a matter, it becomes functus officio regarding that particular matter," Ojienda argued.
"The applications are therefore res judicata in that a determination has been made."
Lawyer Muthomi Thiankolu echoed Ojienda's views, criticizing any attempts to overturn prior decisions, suggesting such actions risked turning the judiciary into a "pendulum," susceptible to inconsistent rulings.
"What you're being asked to do is to flip-flop... A pendulum moves from one end to another but never leaves the extreme ends," he stated, warning that such a path could erode judicial stability and public confidence.
Lifted order
The Kerugoya Court initially issued the conservatory order two weeks ago after President William Ruto nominated InteriorKindiki to replace Gachagua, following his impeachment.
In their judgment, the bench deemed the conservatory orders unsustainable, stressing that a prolonged vacancy would contravene constitutional principles, as the Deputy President's office must be filled promptly under Kenya's post-2010 constitutional framework.
"The applications for conservatory orders are hereby disallowed. The conservatory orders issued on October 18, 2024, in Kerugoya High Court are hereby discharged," the bench rendered.
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The bench clarified that extending the conservatory orders would leave the office vacant without reinstating Rigathi Gachagua as Deputy President.
The Justice Ogola-led bench emphasized that, under Kenya's post-2010 Constitution, no other official--including the President or the Speaker of the National Assembly--can perform the functions of the Deputy President, hence their finding that a prolonged vacancy would be untenable.
"We are convinced that the current constitutional framework does not envision any scenario in which the office of the DP would remain vacant except during the brief period required to fill a vacancy," the bench ruled.
The bench added that continued conservatory orders would effectively suspend constitutional provisions for the Deputy President's exclusive functions, which itself would violate the Constitution.
