- A businessman opposes the court’s decision to reject a panel of five judges to hear the case of Deputy President Kithure Kindiki
- The judges ruled that previous court decisions already addressed the issues raised in the appeal against Kindiki’s legitimacy.
- The case highlights the possibility of a constitutional crisis if President Ruto fails to function while the status of Kindiki remains unresolved
Nairobi – A businessman has increased the legal battle to remove Deputy President Kithure Kindiki from office by filing a Notice of Appeal after a panel of three judges today rejected his request, where he is asking a panel of five judges to hear the dispute related to the removal from office of Rigathi Gachagua.
Source: Facebook
Justices Eric Ogolla, Anthony Mrima, and Wilfrida Mugambi instead ruled that the issues raised by Joseph Aura had already been addressed in earlier decisions by competent courts.
Which court gave a decision in the case that wants to extradite Kindiki
“Controversies regarding the legality and correctness of the decision were raised before the competent courts which culminated in the Court of Appeal. The issue of withdrawal of the existing bench was previously raised, considered, and decided. This application, although structured differently, is essentially a new attempt to reopen the issues decided in full. This court cannot accept such an invitation,” the Court said on Thursday, March 19.
In her amended petition, Aura through lawyer Harrison Kinyanjui, wanted an expanded bench of five judges to hear the amended petition, saying that the matter raises serious constitutional questions that require extensive judicial investigation which has not been investigated by any court so far, as the unique circumstances of the appointment of Kithur Kindiki as the vice president under the current constitution has never been investigated before and is of great public interest.
“For the reasons stated in the body of the motion, along with the supporting affidavit, that substantial issues of law have been raised in the amended petition, justifying your Lordship’s consideration for confirmation by a five-judge bench, this petition is meritorious,” Aura said.
However, the three judges, led by Justice Ogolla, insisted that their bench was properly constituted and refused to certify the matter as meriting an extended bench as requested.
“We issue the following specific orders. First, the Notice of Motion dated 28 May 2025 is dismissed in its entirety. Second, the request to send the Amended Petition to the Honorable Chief Justice for the addition of an expanded bench and for withdrawing from the constitution of the current bench is denied,” Ogolla ruled.
The trio further refused to adjourn the case in a related but separate joint application and insisted that the case would continue for hearing and determination before the current bench. And finally, they ordered that the plaintiff will pay the cost of the case to the defendants.
What the applicant gave in the case of Kithure Kindiki
Immediately after the decision, Kinyanjui asked for permission to file an appeal at the Court of Appeal, saying that his client may not get a chance to be heard later in a fair and just manner.
“Now, my client is very concerned about the clear and unmistakable injustice he will be subjected to. The clear exception is that acquittal will deprive him of issues that another bench may decide.
The position of the Applicant, his expectation, legitimate, I may add, is that the issues that are cross-cutting, the same in every respect, such as the removal of power, for example, ownership mistakes, violation of the constitution, should be addressed, and could be addressed more fairly with the consolidated Complaints,” Kinyanjui said.
In the Revised Petition, Aura says that Kithure Kindiki was sworn in as deputy president outside of the constitutional parameters and is in office illegally because he did not resign from the office of the Minister of Internal Affairs when he was appointed as deputy president, and at that time there was no IEBC created to declare the seat of the deputy president vacant.
Aura insists that no announcement of the suspension of Kindiki as Minister was ever made (until today); a move that violates Article 137(2)(b) of the Constitution of Kenya as read with Article 6 of the Public Appointments (Consent of Parliament) Act.
He further said that he had officially written to the Chief Justice Martha Koome seeking the extension of the current bench shortly after the judgment of the Court of Appeal was issued on May 9, 2025 canceling the bench previously created under the hand of the deputy chief justice in the consolidated petitions, thus canceling everything done earlier in the consolidated petitions.
“The Chief Justice responded through a letter dated January 23, 2025 directing that the request be followed up before the court of first instance. The request to expand the original court or to completely reconstitute it should be given before the court of first instance. This will give other parties an opportunity to respond and the court to make a decision,” Kinyanjui read from the correspondence of the Chief Justice.
Source: AFP
What the complainant said about William Ruto
He added that his client’s application followed the instructions given by the Chief Justice under his authority provided by Article 161(2)(a) of the Constitution.
In court papers, Aura says that if the President William Ruto should he be declared unfit mentally or otherwise to hold office any time now, the country may face a major constitutional crisis faced by an unconstitutionally appointed Vice President.
He noted that if the president were to fail to function or be deemed incompetent while the case is still ongoing, Article 146(2)(a) of the Constitution will be triggered immediately, initiating the invasion of the office of the president and the unconstitutionally appointed vice president.
The issue will now be mentioned on April 23 this year for further instructions.
Additional reporting from Zipporah Weru, TUKO.co.ke reporter.
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Source: TUKO.co.ke
