A man walks past Uhuru Gardens, Nairobi, on October 19, 2024. Kenyans anticipated witnessing the swearing-in of Kithure Kindiki (inset) as the new deputy president at the venue.
Until 9.30 pm on Friday, the planned swearing-in of Prof Kindiki Kithure as the next Deputy President was on course but dramatic developments that revealed high-stakes power play would derail the ceremony.
As soon as the State Law Office learnt of the orders earlier that afternoon by a Kerugoya court stopping the swearing-in of Prof Kindiki, top officials led by Attorney-General Dorcas Oduor were quickly summoned and instructed to prepare a defense to counter these orders.
It was around 3pm when the team of lawyers from the AG chambers was instructed to swiftly move to the Court of Appeal in Nairobi to seek the reversal of the directive that was stalling the quick replacement of Mr Rigathi Gachagua after the Senate had voted to remove him from office as deputy president.
Politicians allied to the government had declared that the country would have a new deputy president by Sunday, October 20 (Mashujaa Day) and the state machinery was working on an overdrive to make the state event a success.
Prof Kindiki had been picked by President William Ruto on Friday to take over from Mr Gachagua who had been ousted through an impeachment by Parliament.
The Senate had upheld the impeachment by approving five of the 11 charges of violation of the constitution and gross misconduct that Mr Gachagua was facing.
Mr Gachagua had been admitted to hospital on Thursday evening shortly before he was due to testify before the Senate to defend himself. His lawyer Paul Muite told the Senate his client had serious chest pains leading to his admission at the Karen hospital.
All systems had been activated on Friday after the National Assembly had voted to endorse President Ruto’s nominee and the grand inauguration of Prof Kindiki had been planned for Saturday at the Uhuru Gardens, Nairobi.
At the office of the president, the final list of guests and dignitaries who were to grace the event was almost complete.
Military chiefs, police commanders and other leaders of state agencies had been instructed to remain in their offices long after office hours just in case their input was required to make the swearing-in ceremony a success.
But just before the start of the 9pm bulletin on Friday came the news that collapsed all the efforts by the State to swear in Prof Kindiki on Saturday.
At the Court of Appeal in Nairobi the government lawyers led by the AG had failed to secure the orders to overturn the decree barring the ceremony.
The team from the State Law Office had failed to convince the appellate judges that there was a need to sit outside working hours to set aside the orders by the Kirinyaga High Court.
Multiple sources familiar with the matter told Nation. Africa that the judges were hesitant to sit outside the office hours unless authorised by Chief Justice Martha Koome.
This directive by the appeal court judges triggered a flurry of calls seeking out the CJ to convene the appeals judges to hear the matter.
Postpone swearing-in ceremony
Both the CJ and her deputy Philomena Mwilu were, however, unavailable.
The sources said the CJ had travelled out of the country and could not be reached on phone.
A crisis meeting by the government team failed to reach a consensus after it emerged that the appeal judges were adamant they would not sit in the night.
Eventually, a meeting that involved officers from the State Law Office and those from the office of the president resolved to postpone the swearing-in ceremony to a later date once the court cleared the hurdle.
The reluctance by the appellate judges was informed by a previous development under almost similar circumstances.
On October 25, 2017, High Court judge George Odunga ruled the appointment of 290 returning officers by the electoral commission was illegal, throwing into disarray the fresh presidential election that was due the following day.
It took a night session by then Court of Appeal judges Ms Koome, Fatuma Sichale and Erastus Githinji to overturn the decision.
This action was to haunt Ms Koome during her vetting for the position of chief justice after a petition was filed against her citing the Court of Appeal night ruling.
But Ms Koome defended the action saying the judges sat at night to avert a constitutional crisis.
It is with this background that the court of appeal judges were hesitant to sit at night to resolve the Prof Kindiki impasse.
Justice Chacha Mwita had on Friday stopped the appointment of Prof Kindiki until the case challenging the removal of Mr Gachagua from office is determined.
The matter will come up in court on Tuesday, October 22.
The court certified the application filed by Mr Gachagua’s lawyers as urgent and referred the matter to the Chief Justice to appoint judges to determine the weighty constitutional issues raised by Mr Gachagua.
On Saturday, the Judiciary spokesperson Catherine Wambui said she was not in a position to state what had transpired at the appeals court on Friday night.
“I will have to find out from the ground,” she told Nation.Africa on phone.
She was yet to give a response.
Mr Gachagua has challenged his ouster from office on grounds that parliament had relied on fabricated claims to remove him from office.
A mockery of the constitution
He has asked the court to block Parliament from processing or swearing in Prof Kindiki as his successor.
Mr Gachagua said in court documents that the impeachment process by the National Assembly and subsequent removal from office was a sham and a mockery of the constitution.
He told the court that MPs had relied on fabricated and false claims to hang him politically.
