President William Ruto has filed a preliminary objection to an urgent suit at the Kirinyaga High Court contesting the nomination of Interior Cabinet Secretary Kithure Kindiki as Deputy President, describing the case as flawed.
According to Lawyer Adrian Kamotho, Kindiki's nomination to replace Rigathi Gachagua following his impeachment on Thursday, October 17, can only be challenged as a presidential election petition at the Supreme Court.
He held that the court sitting presided over by Justice Richarch Mwongo thus lacked jurisdiction to determine the case as framed.
“By dint of Article 165 (5) (a) of the Constitution, the Honorable Court cannot determine the Petition as canvassed and/or grant the prayers sought, being a matter reserved for the exclusive jurisdiction of the Supreme Court,” Kamotho pleaded.
“The Petition as drawn and filed contravenes Article 140 as read together with Articles 148 and 149 of the Constitution, which provisions absolutely vest upon the Supreme Court, the mandate to determine disputes emanating from a presidential electoral process.”
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Further, he cited Article 143 of the Constitution and argued that President Ruto is granted immunity against prosecution as Head of State and cannot be sued in civil court.
“Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.”
Article 143 (2) further stated: “Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”
Kamotho further cited a Supreme Court decision in Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment).
He noted that the court sustained the position that civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution.
Kamotho faulted the petitioners, describing their suit as “a clear disregard of the law, [and] an abuse of due process of court.”
President Ruto’s lawyer asked the court to find the petition “irredeemably defective, null and void ab initio for breach of mandatory provisions of the law”.
President Ruto’s objection came a day after Gachagua wrote to the High Court Registrar contesting directives issued by a three-judge bench in Nairobi, which was considering his petition alleging bias.
