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{
    "id": 1483582,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483582/?format=api",
    "text_counter": 188,
    "type": "speech",
    "speaker_name": "Mr. Charles Njenga",
    "speaker_title": "",
    "speaker": null,
    "content": "Interestingly, you will see as Annex in our Affidavit, for example, the first order was purportedly issued on the 2nd October when the Motion was being debated before the House. The parties to that order were the County Assembly and the Speaker of the County Assembly, but it appears that the orders mutated a day after, without any reference to the procedure allowed and known to all of us as provided for under Rule 18 of the Mutunga Rules as to how you can amend a Petition and a Motion before the House. They mutated on the 3rd October to thereafter bring the Senate and the Speaker of the Senate as parties to the order. How did they mutate? How was the Senate and the Speaker brought to the same matter within a day without its participation? You will see that we have referred to the screenshots that made the County Assembly aware of these orders. The County Assembly has taken the position that it was not served with those orders. That is on paragraph nine of the replying affidavit. That is an issue of fact that shall require strict proof. We have not been led to any affidavit of service by counsel to indicate whether those orders were served. It is straight law that an order that has not been served is inoperative for all intents and purposes, including these proceedings. The orders appear to have been circulated as early as 11.50 a.m. if you look at the stamp on top, but when you go to the CTS portal of the Judiciary, the application that yielded these orders was filed at 12.10 p.m. I am referring to page eight of this Volume. We have a situation where an order is issued before even the application was filed. That is for the Senate to consider. We have escalated that matter as an issue of investigation before the Judicial Service Commission (JSC). We have annexed a very comprehensive letter that I do not wish to reiterate its contents on before this House. Secondly, as I finish, without prejudice to those arguments, I want to make reference to paragraph 19 of the replying affidavit. We have argued on the import of these orders. Are they applicable to the Senate to the intent of stopping the Senate from hearing this impeachment proceedings? We have referred to the decision by the Supreme Court in the Justice Kariuki multimatter. This decision is annexed for the benefit of Senate. It is a decision that I had the pleasure of arguing in the Supreme Court together with Sen. (Prof.) Tom Odhiambo Ojienda, who is seated here, where the Supreme Court was quite explicit that a court cannot restrain a constitutional organ that is operating within its time-bound constitutional limits. That I refer to the holding of the Supreme Court at paragraph 11, which you will find at page 20 of the volume. The import of that holding to this House is that the two orders referred to by counsel for the County Governor cannot have the effect of stopping the proceedings before this House. Finally, as I sit down, this Senate has already taken a position in that matter. I will do nothing more than refer the Senate to page 59. This will be the last document I refer to because of time. I am yielding the floor to my colleague. Page 59 is a position taken by the Senate in these proceedings, in this matter. The Senate has said, by way of a preliminary objection, that we are not bound by that order. It has told the High Court in no uncertain terms that we are not bound by that order to the extent that it does not comply with a settled jurisprudence by the Supreme Court, which has been followed with approval by the Court of Appeal in the Hon. Kawira Mwangaza case and in many other The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Director, Hansard and AudioServices, Senate."
}