An activist, Joseph Enock Aura, has filed a petition at the Milimani High Court seeking to quash Prof Kithure Kindiki’s appointment as Deputy President. 

The 215 page petition, filed on Monday, argues that the process leading to Kindiki’s swearing-in last Friday, was a “sham” and unconstitutional. 

Aura claims that Kindiki was illegally appointed, and his installation into office violates several provisions of the Constitution.

Represented by lawyer Harrison Kinyanjui, Aura’s case challenges the legality of Kindiki’s appointment on multiple fronts. At the heart of the petition is the claim that Kindiki continues to serve as Cabinet Secretary for the Ministry of Interior, and he has not been officially gazetted to have vacated that position.

According to Article 137(2)(b) of the Constitution, no person can be appointed Deputy President unless they cease holding another public office, such as the position of Cabinet Secretary. 

“To date, Kindiki remains the CS for Interior, as no official gazette notice has been published to indicate he has stepped down from this role,” Aura contends.

Illegal

As a result, Aura argues that Kindiki’s nomination and subsequent swearing-in as Deputy President were illegal. He further emphasizes that the failure to fulfill this constitutional requirement renders Kindiki’s appointment void and of no effect.

Aura further contends that the process leading to Kindiki’s appointment lacked transparency and was marred by legal irregularities. 

In addition, Aura raises concerns about the lack of transparency surrounding the entire process.

Under Kenyan law, the assumption of the office of Deputy President requires the declaration of a public holiday, an action that was not taken in this case. This omission, according to Aura, renders the swearing-in ceremony unconstitutional.

He claims that the events leading up to Kindiki’s installation were conducted secretly, without the necessary  public engagement and legal procedures, in violation of the principles of transparency as enshrined in Article 10 of the Constitution.

Aura’s petition also targets the appointment of Musalia Mudavadi, the current Cabinet Secretary for the Ministry of Interior.

Justice Bahati Mwamuye granted Kindiki, President Ruto, Gachagua, Attorney General Dorcas Oduor, Chief Justice Martha Koome, National Assembly, Senate, IEBC, and Kibwezi West MP Mwengi Mutuse until November 12 to file their responses to the lawsuit. 

The case will be heard on December 16, 2024.