A businessman who is seeking the ouster of Deputy President Kindiki Kithure from being recognized as Kenya’s Deputy President now wants the Chief Justice to constitute a bench of an uneven number of judges to his Petition (among other) challenging the removal of Rigathi Gachagua as the Deputy President.
Through lawyer Harrison Kinyanjui, Joseph Aura wants Chief Justice Martha Koome to reconstitute a five-judge bench, saying that the issues raised in the matter are weighty and of great national and public interest.
“We refer to the above matter and advise that we act for the Petitioner in the cited Constitutional Petition.
We bring your kind attention to our letter dated January 16th, 2025, over the above issue and your response thereon dated 23rd January, 2025.
As already notified, certification of the said Constitutional Petition as fit for the constitution of a Bench of an uneven number of Judges in view of the very weight matters of great national and public interest herein informed our request, that in the exercise of your Constitutional mandate and discretionary powers, you grant our said request”, the letter received by the Chief Justice reads in part.
Kinyanjui wrote to the Chief Justice following the Judgement of the Court of Appeal on May 9th, 2025 where it ruled that the Deputy Chief Justice Philomena Mwilu improperly formed a three-judge bench to allow the swearing in of Kindiki.
His client urged Koome to reconstitute the bench as per their request in a Constitutional Petition that was filed last year with a view to having an expanded bench of five judges to hear the case.
The three-judge bench led by Francis Tuiyott, Daniel Musinga and Mumbi Ngugi directed the Chief Justice to empanel another bench within 14 days.
Aura wants the Court to quash Kindiki’s appointment as Deputy President, stating that Musalia Mudavadi had no powers to declare November 1, 2024 a public holiday, the day Kindiki was purportedly sworn into office.
He says that Mudavadi was not lawfully appointed as the Acting Interior CS.
“Gazette Notice 14101 published on the night of 31st October 2024 by Hon. Musalia Mudavadi purporting to declare 1st November 2024 as a public holiday in Kenya without any statutory powers conferred on him under the Public Holidays Act, having never Constitutionally ascended to, or been lawfully appointed as the Cabinet Secretary Ministry of Interior and National Administration was null and void. He had no capacity in the event, hence breaching Article 2(2) of the Constitution of Kenya”, he said in Court papers.
He says that the events leading up to the swearing-in of Kindiki were not transparent as Mercy Wanjau (the Chairperson of the Assumption of the Office of the Deputy President Committe)e not bieng a Minister had no powers to declare November 1, 2024 a public holiday.
“She purported to publish Gazette Notice No. 14100 (Vol. CXXVI- No.183) she thereby ostensibly assumed that 1 November 2024 was a public holiday and certainly NOT being the Minister appointed to so do made frenzied efforts at night to provide legal cover for Kindiki’s swearing-in”.
Aura accused Wanjau of committing illegalities by publishing a Gazette Notice at night to declare a public holiday without legal power.
“In a frenzied attempt on the night of 31 October, 2024 at providing legal cover to the stated illegalities, the declaration of the illegal public holiday surreptitiously executed under opaque and unknown hush-hush circumstances negating the Principle of Transparency espoused in Article 10(2)(c) of the Constitution.
The 11th Respondent herein President of the Republic of Kenya purported to appoint (via a purported Executive Order NO. 5 of 2024) in an acting capacity Hon. Musalia Mudavadi as the Acting Cabinet Secretary for the Ministry of Interior vide an equally surreptitiously published Gazette Notice 14099”, he stated.
Aura says that in fact Executive Order No. 5 of 2024 had already been published in July 2024 and that there can be no 2 Executive Orders bearing similar numbers in any one year.
He also says that since on the material night of 31 October 2024 President Ruto was in Rwanda attending an African Head of States meeting, he could not have feasibly signed and sealed the Executive Order No. 5 in question while in Rwanda.
It is these illegalities that Aura wants heard by not less than 5 Judges as they are unprecedented.
