A businessman is seeking to challenge the official recognition of Kindiki Kithure as Kenya’s deputy president, stirring controversy.

Joseph Aura is now requesting Chief Justice Martha Koome to form a bench with an odd number of judges to hear his petition, among other matters, challenging the removal of Rigathi Gachagua as deputy president.

Through lawyer Harrison Kinyanjui, Aura asked Koome to reconstitute a five-judge bench, stating that the issues raised are weighty and of significant national and public interest.

“We refer to the above matter and confirm that we represent the Petitioner in the cited Constitutional Petition. We draw your attention to our letter dated January 16 regarding the issue and your response dated January 23, 2025," the letter received by Koome reads in part.

"As previously notified, the certification of the Constitutional Petition as suitable for a bench with an uneven number of judges, given the weighty matters of national and public interest involved, informs our request that you, in the exercise of your constitutional mandate and discretionary powers, grant our petition,” Kinyanjui further stated

Kinyanjui wrote to Koome following the Court of Appeal’s May 9 ruling that Deputy Chief Justice Philomena Mwilu improperly constituted a three-judge bench to facilitate 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 is asking the court to nullify Kindiki’s appointment as deputy president, arguing that Musalia Mudavadi lacked the authority to declare November 1, 2024, a public holiday—the day Kindiki was reportedly sworn in.

He says that Mudavadi was not lawfully appointed as the acting Interior Cabinet secretary.

"Gazette Notice 14101 published on the night of October 31, 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 argued that the events surrounding Kindiki’s swearing-in lacked transparency, noting that Mercy Wanjau, chairperson of the Assumption of the Office of the Deputy President Committee, did not have the authority to declare November 1, 2024, a public holiday, as she is not a minister.

"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, to provide legal cover to the stated illegalities, the declaration of the illegal public holiday was 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, President of the Republic of Kenya, allegedly appointed Hon. Musalia Mudavadi as Acting Cabinet Secretary for the Ministry of Interior through what Aura describes as a clandestinely published Executive Order No. 5 of 2024 and Gazette Notice 14099," he stated.

Aura contends that Executive Order No. 5 of 2024 had already been issued in July 2024, making it impossible to have two executive orders with the same number in the same year.

He further argues that Ruto was in Rwanda attending an African Heads of State meeting on the night of October 31, 2024, and therefore could not have signed or sealed the disputed Executive Order while abroad.

Aura insists these alleged irregularities are unprecedented and must be heard by a bench of no fewer than five judges.

This comes days after the former deputy president filed a notice withdrawing four pre-impeachment petitions that challenged his removal from office.

Gachagua also requested that the cases be excluded from consideration by a three-judge bench to be appointed by the chief justice.

Represented by Senior counsel Paul Muite and Advocate Victor Swanya, Gachagua’s legal team said the petitions were withdrawn because they had been overtaken by events.

However, the court was informed that the petitioners plan to proceed with seven other petitions filed after the impeachment.

Source: TUKO.co.ke