Kindiki: I was elected by MPs, not appointed

Deputy President Kithure Kindiki claimed on Thursday that he was "elected" by Parliament and not appointed.

His lawyer, in his submissions in the case of Rigathi Gachagua's impeachment, alleged that the process was an unusual one as Members of Parliament were meant to cast a vote.

“My client ascended to his office through a sui-generis (in a class by itself) pathway. This event that occurred is not part of the routine and day-to-day function of Parliament. That sui-generis function is an election by the National Assembly,” Muthomi Thiankolu told the High Court.

According to him, Article 149 requires Parliament to vote, adding that it does not talk of an approval like in the cases of nominees.

At the same time, the lawyer argued that even if there is evidence that Kindiki was not a member of any political party, there was a finding that it would be absurd for civil servants to resign before assuming a political office.

Thiankolu said the DP, who then served as Interior Cabinet Secretary, had no way of knowing the office would fall vacant, adding that the Independent Electoral and Boundaries Commission (IEBC) had the power to clear him without commissioners.

The electoral agency admitted that it had no commissioners but insisted that it could function with a secretariat.

The IEBC further claimed that it had no role in determining the viability of Kindiki. It claimed that their response to an inquiry by President William Ruto about Kindiki's suitability was just a response to a status and had nothing to do with clearing him.

It argued that only the President and the National Assembly had a role in clearing the nominee for swearing-in.

Thiankolu added that the issue of the speed at which Kindiki replaced Gachagua was not important to the case. He said seamless actions that transpired after, from clearance to the swearing-in, should be credited to the government.

Gachagua’s lawyer, Paul Muite, told Justice Eric Ogola that both the Senate and the National Assembly worked with a targeted outcome in mind. He claimed that even though the Senate had begun its hearings, the National Assembly had already gazetted a special sitting to approve his replacement.

The senior lawyer argued that the speed at which his client was replaced was a violation of the Constitution since there is a 74-day grace period provided by the law.

He stated that the Senate voted to impeach Gachagua on October 17, 2024, at night, while President Ruto nominated Kindiki on the same night. The next morning, the National Assembly approved his nomination.

“Rushing through this process in under 12 hours, the respondents committed grave constitutional wrongs, rendering the appointment of Kithure Kindiki as Deputy President unconstitutional, hence invalid,” argued Muite.

In reply, Thiankolu argued that courts had ruled that in such positions that are critical to the country, there ought to be no void.

But Muite insisted that the National Assembly neither conducted public participation nor sought memoranda on Kindiki’s suitability.

“Additionally, the nomination was preceded by an overnight clearance from the Independent Electoral and Boundaries Commission. IEBC lacked commissioners for nearly two years; therefore, it could not register voters, conduct boundary reviews, by-elections, or recall elections,” he said.

In the meantime, Thiankolu sensationally claimed that Gachagua feared facing the Senate.

“The real reason the petitioner engaged in this act of malingering to run away from cross-examination is that the cross-examination would have affirmed the count relating to the bizarre amassing of wealth, the count on economic crime and corruption. He knew if he had dared step on that podium to be cross-examined, he would have no way of explaining how rich he is. He amassed an estate worth Sh5 billion.”

But Gachagua’s lawyer, Tom Macharia, objected, saying Thiankolu was raising allegations which were dismissed.

He argued that the respondents were blowing hot and cold on the court’s powers to reopen the merits of the case. On one hand, he said, they were arguing that the court cannot merit-review what transpired in Parliament, while on the other hand, they were justifying why they impeached him.

He asserted that Gachagua has no interest in going back to office.

“The people of Kenya elected a Deputy President on August 22, 2022, by a margin of slightly over 7 million people. He must be removed only in a manner consistent with the Constitution. Any impeachment proceedings such as this are a violation of the constitutional process,” he argued.

The case continues on May 22.