Constitution of Kenya (Repealed) - Kenya Law Reports

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12 Constitution of Kenya[Rev. 2009(b) if the President is not elected as a member of the Assemblyat that election, he shall cease to hold office as President uponthe expiration of the time allowed by law for the making ofan application to the High Court under section 44 in respectof that election, or, where such an application is made by himor by the Attorney-General, upon the High Court determiningthat the person declared to be elected at that election hasbeen validly elected:Provided that -(i) if the High Court determines, in relation to an electionheld pursuant to paragraph (a) at which a person otherthan the President has been declared to be elected, thatthat person has not been validly elected, the High Courtshall declare the seat to be vacant and a further electionshall be held pursuant to paragraph (b) and this provisoshall apply accordingly;(ii) notwithstanding that his seat in the Assembly has beendeclared to be vacant, the President shall be entitledto sit as a member of the Assembly and to exercise allthe powers and privileges of an elected member of theAssembly until he ceases to hold office as President.(4) Where the High Court determines under section 44 that thePresident has not been validly elected as President for any reason otherthan that he has not been validly elected as a member of the NationalAssembly or that the seat in the Assembly of the President has becomevacant, he shall cease to hold office as President.Exercise ofPresident’s functionsduring absence,illness, etc.Removal of Presidenton grounds ofincapacity.11. Where the President intends to be absent from Kenya, or wherehe considers it desirable by reason of illness or any other cause to doso, he may in writing appoint the Vice-President to exercise, subject tosection 6 (3) and subject to such restrictions or exceptions as he mayspecify, the functions of his office.12. (1) Any question whether the President, or any other personexercising or about to exercise the functions of the office of President, isunable by reason of physical or mental infirmity to exercise the functionsof that office, shall be determined in accordance with this section.(2) Where the question is whether a person has become unable byreason of physical or mental infirmity to exercise the functions of theoffice of President, and the Chief Justice is requested by resolution ofthe Cabinet conveyed to him by the Speaker of the National Assemblyto cause that question to be determined, then -
Rev. 2009]Constitution of Kenya 13(a) the Chief Justice shall appoint a tribunal, which shall consistof not less than five persons appointed by him from amongpersons who are qualified as medical practitioners under thelaw of Kenya, and who shall include any person nominatedfor appointment in accordance with subsection (5); and(b) the tribunal shall inquire into the matter and make a report tothe Chief Justice, stating the opinion of the tribunal whetheror not the person in respect of whom the question arises is,by reason of physical or mental infirmity, unable to dischargethe functions of the office of President; and(c) the Chief Justice shall certify accordingly under his handand cause the certificate to be conveyed to the Speaker ofthe National Assembly:Provided that the Chief Justice shall cause the question to bedetermined without a resolution of the Cabinet if he receives a certificateunder the hand of the Speaker of the National Assembly to the effectthat there are no Ministers present in Kenya, other than a person withrespect to whom the question arises, and that the Speaker considers thatit is in the interests of Kenya that the question should be determinedwithout delay.(3) Where the question is whether any person in respect of whomthe Chief Justice has given a certificate in accordance with subsection (2)that he is unable to exercise the functions of the office of President, hasceased to be unable by reason of physical or mental infirmity to exercisethose functions, and the Chief Justice is requested, by resolution of theCabinet conveyed to him by the Speaker of the National Assembly, or byrequest under the hand of the person in respect of whom such certificatewas given conveyed to him by the Speaker of the Assembly, to causethat question to be determined, then the Chief Justice shall appoint atribunal in accordance with subsection (2) (a), and that tribunal shallinquire into the matter and report in accordance with paragraph (b) ofthat subsection, and the Chief Justice shall certify accordingly underhis hand and cause the certificate to be conveyed to the Speaker of theAssembly.(4) Where the Speaker of the National Assembly has received acertificate of the Chief Justice pursuant to this section that the President isunable to discharge the functions of his office, and within the succeedingperiod of three months the Speaker has not received any certificate ofthe Chief Justice pursuant to this section that the President has ceasedto be unable to discharge the functions of his office, the President shallcease to hold office upon the expiration of the said period.
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