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"content": "(Hon. Kingi spoke off record)"
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"speaker_name": "Mr. Katwa Kigen",
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"content": "Thank you, Mr. Speaker, Sir. Hon. Senators, apart from relying on those two instances; the 2014 criteria by Kericho County Government determining that 32 is the required threshold to meet two- thirds for purposes of the impeachment of the predecessor of hon. Dr. Erick Mutai and the criteria also applied when the current Speaker who approved of this Motion was elected, it was also decided that the two Members of the MCAs required to vote in support to amount to two-thirds. I wish to also refer to the events of the National Assembly. Mr. Speaker, Sir, your colleague, the hon. Moses Wetangula, in a ruling which was in the public domain, made on 1st of October, and which I pray, you take judicial notice of, discussed the issues that have been raised by a number of Members of Parliament (MPs), being, whether two-thirds is mustered by 116 MPs or 117. Mr. Speaker, Sir and hon. Senators, a relevant situation is that in the National Assembly, one-third of the total number of Members of the National Assembly, being 349, came to 116.33. So, there is a similarity in our case being 0.3 in the 31.3. The Speaker was very categorical; he said that for purposes of one-third to approve the Impeachment Motion against the Deputy President, it would require 117 Members. Therefore, you should move a step further. You do not scale down to 116, but up to 117. That ruling by hon. Moses Wetangula is dated 1st October, 2024 and it is in the public domain. We pray that the criteria used to elect the Speaker, the criteria used to impeach hon. Chepkwony, the criteria used to consider the impeachment of the Deputy President, which has not happened here, and the criteria used to approve the impeachment of the Deputy President in the National Assembly should apply here. They used one formula being that you should move a step further because you cannot have a fraction of a person. That criteria should not change in the case of Dr. Erick Mutai. If you scale down because it is him, our argument will be that it is discriminatory. The last incident that I wish to cite are the events in Nyamira County Government. In that county government, there are 34 MCAs. Out of the 34, there are 14 nominated and 20 elected. One-third was found to be 11.3. We again find the same 0.3 in the case of Nyamira. In that case, the County Assembly of Nyamira adopted the approach that 0.3 requires that you scale up to 12 as opposed to 11 people. For that reason, I insist that it will be discriminatory to deem the Motion that has been brought to this Senate as being competent to the extent to which it fell short of 31.3. 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."
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"speaker_name": "Mr. Katwa Kigen",
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"content": "Mr. Speaker, Sir, I am aware that my colleagues are restless to make the argument that this is an issue that does not quite squarely rest on your hands under the provision of Rule 30. It is my argument that it clearly falls within your hands. Rule 30 states that where on a particular question or matter, including but not limited to the question of evidence, materiality, relevance, competency, or admissibility of evidence, any question consequential or incidental thereto, where no provision has been made in the Standing Orders or in these rules, the Speaker of the Senate shall rule and your decision will be final. Mr. Speaker, Sir, it is my argument that this issue falls squarely in your hands. It is my argument that when Rules 14 and 30 were being drafted, they must have contemplated a situation like this where you need to make a decision on a matter such as the competence of this Impeachment Motion before the Senators. The consequential question is whether we should go on or not and all the related aspects of the competence of this Impeachment Motion. It is my argument that the Senate, in a certain sense, is on trial as to whether it will maintain the requirements of Section 33 on at least two-thirds and the attendant aspect of the rule of law and whether or not there is observance of that requirement. Mr. Speaker, Sir, I request for 7 minutes to play a video clip to make reference to a decision made by Justice Manani. That is in volume one, pages 60 to 78. In that case, the learned judge said that where a committee requiring a certain threshold, in that case one-third--- They had sat on a proceeding that fell short of one-third. That is from paragraph 90 onwards. It is found on page 71. The judge said; it is perhaps also necessary to point out that Standing Order No.68(8) uses the mandatory term “shall” when directing that an ad hoc committee be set up and should comprise one-third. He went on to say that if they do not amount to one- third, then it does not meet the threshold. Mr. Speaker, Sir, it is a significant point that the Speaker of the County Assembly of Kericho used. You will find this reasoning on pages 160 to 161 with reference to that case of Michael Nkaduda versus County Assembly of Tana River. He went on to say that you should round off. It is our argument that you can never round off to fall below the line or less than one-third. If you are to do so, you would be acting in contravention of the law. Mr. Speaker, Sir, having said so, I request that the video clip be played. After that, I will request for five minutes for my colleague, Mr. Tunen to finalise on the preliminary objection."
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"content": "(A video clip was played)"
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"type": "speech",
"speaker_name": "Mr. Katwa Kigen",
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"content": "Mr. Speaker, Sir, that was during the election of the Speaker who made arguments that I have just referred to. He said that since it was 31.3, you should round off to the next---"
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"type": "speech",
"speaker_name": "Hon. Kingi",
"speaker_title": "The Speaker",
"speaker": null,
"content": " Counsel, we have listened to the video clip."
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"speaker_name": "Mr. Katwa Kigen",
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"content": "Thank you. Mr. Speaker, Sir, in closing, it is my submission that there are two issues that both yourself and this Senate need to address. The first issue is the meaning of ‘at least’ in Section 33 of the County Governments Act. 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."
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"speaker_name": "Mr. Katwa Kigen",
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"content": "When you apply the calculation in respect to Kericho, does it mean 31.3 and above or it can be scaled down to 31? Therefore, the first issue is the meaning of ‘at least’ in Section 33 of the County Governments Act as read together with Standing Order No.74 of Kericho County Assembly Standing Orders. The second question is how you should treat a fraction where it relates to human beings. When it is 0.3, do you dismiss it and scale it down to 31, or that 0.3 represents a person? This is very significant. Mr. Speaker, Sir, looking at the situation of these proceedings, there were 47 MCAs in Kericho County; 16 said they would not attend because they do not support the Motion. The other 31 MCAs were present and they supported the Motion. Following the tradition of both the Senate and the National Assembly, it is always the case that when members have not voted in favour of, it is deemed that that vote was not in favour of. So, the 16 must be treated as having opposed the Motion. It cannot be given conjecture that the 0.3 could exist in the 16. It is my argument, therefore, then, that clearly it did not meet the threshold. I wish to say that considering the precedent from your colleague from the National Assembly, we pray that for purposes of consistency, unless you have a very strong reason to disagree with him, you adopt the reasoning that he has applied for consistency and clarity of law. Secondly, that if the criterion is used differently from Nyamira County Assembly, from the National Assembly, from the election of the Speaker, from the impeachment of hon. Chepkwony, then it would amount to discrimination. Mr. Speaker, Sir, I had requested for just a little latitude. I had said five minutes. Could you allow him just two minutes, kindly?"
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"speaker_name": "Hon. Kingi",
"speaker_title": "The Speaker",
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"content": " Counsel, your time is up. You kept repeating yourself on the same argument in different form. So, you may want to rest your Preliminary Objection (PO) there. Maybe I need to ask you a question. In response to a preliminary matter raised by the county assembly. Do you have no problem with the affidavit dated 13th October, 2024, being admitted and being part of the record?"
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"speaker_name": "Mr. Katwa Kigen",
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"content": "Mr. Speaker, Sir, I confirm that I have no objection. We have discussed both of us and subject to the Senate and you, Mr. Speaker, Sir, we have agreed that they accept our replacement documents, properly paginated and we would have no objection to the affidavit."
}
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