Lawyers representing Deputy President Kithure Kindiki have told three High Court judges that judicial power is limited.
“Judicial power just like executive power and legislative power is limited and there are things Judicial power cannot do even when it is stretched to the outer contours of its margins,” said Dr Muthomi Thiankolu.
The Senior Counsel was making submissions before justices Eric Ogola, Freda Mugambi and Antony Mrima in the ongoing case challenging the impeachment of Rigathi Gachagua as deputy president.
“What we are saying is that your power is supervisory rather than appellate.”
According to Thiankolu the ex-deputy president was impeached on among other grounds, misconduct that can be an existential threat to the well-being of the country especially when committed by the holder of second highest office in Kenya.
He argued that the impeachment process is the reserved for senior state officers and the power of removing them was given to parliament.
The senior lawyer further argued the argument of timelines of 14-days given to the impeachment process that was raised by Gachagua’s team does not stand since, if a matter should be solved in 14 days what harm does it cause if it is done in a day or two.
He further cited the move by the ex-deputy president’s team to drop his prayer seeking to be reinstated, saying that he is speaking from both sides of the mouth since he wants the quashing of the impeachment which then means the process never took place.
According to Thiankolu if the court were to agree with him and grant the prayers to quash the impeachment then it would mean then he is legally in office which would jeopradise his client Kindiki.
“If there was no impeachment, it means he remains in office, he never left office,” said Thiankolu adding that a DP can only leave office by death, resignation or removal and Gachagua left office by the latter.
He said that Gachagua’s prayer seeking to be given earnings and perks that he was to get as a DP should not be allowed since there is a Supreme Court decision that said that one cannot be awarded anticipated earnings even the removal grounds were unconstitutional.
“If you were to grant him this compensation wouldn’t that be a slap on the face of the people of Kenya and their representatives who held that this man has behave in a manner that is incompatible with the dignity and status of the second highest office in the land,” he posed.
On public participation, lawyer Kenson Mutethia said that it was impossible to conduct the exercise in all the 46,000 polling stations.
According to the advocate the cost implications would have been enormous and the Senate was sitting as a trial court since public participation had been carried out by the national assembly.
Mutethia further submitted that the petitioners argue that the DP post is an elective office but when it comes to filling the vacant then it becomes an appointing office.
