The attempt by impeached Deputy President Rigathi Gachagua to halt the ruling regarding Kithure Kindiki’s potential swearing-in as his successor has reached an impasse.
This development follows the Court of Appeal’s refusal to grant a temporary suspension of the bench that is set to issue a ruling on whether to lift the conservatory orders that currently prevent Kindiki’s swearing-in.
Judges Patrick Kiage, Aggrey Muchelule, and George Odunga postponed the hearing of the application for a stay of proceedings after the United Democratic Alliance (UDA) and Kibwezi MP Mutuse Eckomas asserted that they had neither been served nor named in the application.
“We had not been served or even named as respondents in this application, despite being involved in the High Court proceedings,” argued the respondents.
The court’s ruling established that Rule 79 of the Court of Appeal requires notification to all parties impacted by an appeal.
“It goes down to first principles that all parties must be given an opportunity to be heard,” ruled the court.
The Court had mandated that the motion and accompanying documents be served to all relevant parties by October 29, with responses due by October 30.
Furthermore, Gachagua was instructed to provide an affidavit of service by 9 am on October 31.
Nevertheless, the judges indicated that these instructions had not been entirely followed.
“The absence of other parties due to non-service handicaps us from proceeding with today’s hearing. We cannot proceed without having those other parties named and served. We cannot assume they would have nothing to say about this petition,” ruled the Court.
The Court later instructed Gachagua to revise his motion, which was originally submitted on October 25, to incorporate all parties involved in the High Court proceedings as respondents.
The revised documents are to be delivered by noon on November 1, and all parties are required to submit their responses by noon on November 4.
“Considering the importance and urgency of the matter we direct as follows.The applicant shall amend the motion filed dated Oct 25 that all parties in the proceedings at the high court shall be named as respondents the amendments shall be made and served on Nov 1 by 12 noon. Once the parties have been served they shall file their responses to the motion by 12 noon on Nov 4,” ruled the court
The matter will be heard on November 6.
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