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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."
},
{
"id": 1483583,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483583/?format=api",
"text_counter": 189,
"type": "speech",
"speaker_name": "Mr. Charles Njenga",
"speaker_title": "",
"speaker": null,
"content": "cases, including decisions of the Senate, specifically in the Hon. Mike Sonko matter and also in the Wambora II, matter, which decisions are within the House. I yield the floor to my colleague to urge the issue of the number threshold. I thank you."
},
{
"id": 1483584,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483584/?format=api",
"text_counter": 190,
"type": "speech",
"speaker_name": "Mr. Hillary Kiplangat",
"speaker_title": "",
"speaker": null,
"content": "Mr. Speaker, Sir and honourable Members, for the record, my name is Hillary Kiplangat. I will address the third preliminary objection; which is the question of whether the threshold of two-thirds required by Section 33 of the County Governments Act, 2012 was met in the impeachment of Governor Hon. (Dr.) Erick Kipkoech Mutai. Section 33 of the County Governments Act, 2012, indeed, requires the County Assembly to satisfy a threshold of two-thirds of its Members to pass a Motion for the impeachment of the governor. The controversy in this case is that 31 Members voted in support of the Motion and in the humble submissions of the Speaker, as per the HANSARD of that day, that constituted two-thirds of the members of the county assembly. Mr. Speaker, Sir, in his ruling, the Speaker of the County Assembly in page 131 of volume one of our documents allowed himself to be guided by a decision of the High Court and that is the case of Michael Justine Nkaduda versus the County Assembly of Tana River and four others, KELRC 1605, in which a judge of the High Court by the name Justice Manani had held that when it comes to matters rounding off, one rounds off to the nearest whole number. So, when it came to that determination, the Speaker of the County Assembly was guided by a constitutional position which had been determined by the High Court in that particular case which I have cited. That position is in volume one of our documents at page 131. You will find the ruling of the Speaker in which he cited the case of Justin Nkaduda versus the County Assembly of Tana River. Mr. Speaker, Sir, the decision of Justice Manani is an application of elementary mathematical rule of rounding off; in which numbers are ordinarily rounded off to the nearest whole number. The same formula has been applied in various other decisions of courts. A case in point is the case of Adrian Kamotho Njenga versus the Judicial Service Commission, which interrogated the composition of the Supreme Court, in compliance with the requirements that no more than two-thirds of the same gender shall be in that appointive position. In that case, the High Court and the Court of Appeal were clear that when it comes to rounding off, you round off to the nearest whole number. The reigning jurisprudence which has been handed down by our courts is that one rounds off to the nearest whole number. In this case, there are 47 members of the County Assembly of Kericho. To achieve two-thirds of 47, it will give you a number of 31.33. The nearest whole number to 31.33 is 31 and not 32. That is in keeping with the jurisprudence, which has been settled by our courts. Mr. Speaker, Sir, suffice to note, in the County Assembly of Kericho, there are 30 electoral wards. Out of the 30 electoral wards, 29 men and one woman were elected as MCAs. The IEIBC, in constituting the gender quotas for purposes of nominations, nominated two additional men, making the number to be 31 men against 15 nominated women. Thus, the number of nominated women in the County Assembly is 16. 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."
},
{
"id": 1483585,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483585/?format=api",
"text_counter": 191,
"type": "speech",
"speaker_name": "Mr. Hillary Kiplangat",
"speaker_title": "",
"speaker": null,
"content": "Therefore, 31 men in the wisdom of IEBC - and it is important to note that IEBC is a constitutionally mandated body that can ascertain gender quotas as per the law, in their wisdom, two-thirds is 31 and that is why at the County Assembly of Kericho today, we have 31 men and 16 women MCAs. Mr. Speaker, Sir, even if we were to convert these figures to percentages, you will realize that if we were to argue that 32 was two-thirds, it would yield a percentage of 68.05 percent and in actual sense, two-thirds would be a percentage of 66.67. One can see that variance even if you convert those figures into percentages. In any event, if one was to argue logically that two-thirds is 32 and a third is 16, we would be having a figure of 48 MCAs in the County Assembly of Kericho, which is not the position because we have 47 MCAS. Hon. Members, this is a constitutional question, which has been settled by the courts in Kenya and in keeping with the doctrine of stare decisis, which provides that, bodies adjudicating on disputes which touch on the Constitution or the law are bound by the decision of the high court or superior courts. The decision in the case of Justin Nkaduda versu s the County Assembly of Tana River as well as Adrian Njenga Kamotho"
},
{
"id": 1483586,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483586/?format=api",
"text_counter": 192,
"type": "scene",
"speaker_name": "",
"speaker_title": "",
"speaker": null,
"content": "versus"
},
{
"id": 1483587,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483587/?format=api",
"text_counter": 193,
"type": "speech",
"speaker_name": "Mr. Hillary Kiplangat",
"speaker_title": "",
"speaker": null,
"content": "the Judicial Service Commission is binding in this House. It does not matter how many times the county assemblies or parliament has applied a different formula. The only time when this matter has come up for determination is before the High Court. The High Court has given a finding that you round off to the nearest whole number when you are confronted with an issue which requires numbers to be rounded off. Mr. Speaker, Sir, those are our submissions in respect of the third preliminary objection unless my learned senior, Mr. Bosiek, has to add and you could give him a minute or so."
},
{
"id": 1483588,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483588/?format=api",
"text_counter": 194,
"type": "speech",
"speaker_name": "Hon. Kingi",
"speaker_title": "The Speaker",
"speaker": null,
"content": " Clerk, how much time is still available to the County Assembly?"
},
{
"id": 1483589,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483589/?format=api",
"text_counter": 195,
"type": "scene",
"speaker_name": "",
"speaker_title": "",
"speaker": null,
"content": "(The Clerk-at-the-Table consulted with the Speaker)"
},
{
"id": 1483590,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483590/?format=api",
"text_counter": 196,
"type": "speech",
"speaker_name": "Mr. Joel Bosek",
"speaker_title": "",
"speaker": null,
"content": "Mr. Speaker, Sir, just to add a few more points, the HANSARD that has been supplied by my learned friend, Katwa Kigen is not certified and is not complete as well. I wish to also point out that when you look at what is purported to be the HANSARD, there is a disclaimer that: “This electronic version of the official HANSARD report is for information purposes only. A certified version of the report can be obtained from the Hansard Editor.” Mr. Speaker, Sir, hon. Senators, we have not been furnished with any document that shows that the same are certified by the HANSARD Editor. In fact, we have not seen any input from the HANSARD Editor. Having said that, we therefore stand to say that whatever that has been produced, purported to be from the Kericho County Assembly; just like the documents which were purported to have been produced from the High Court in form of orders, did not go through the process of certification and, therefore, they are of no propertive value. On that basis, we urge the hon. Senators to look at them and to also question why Counsel will produce documents, which are in themselves self-defeating. 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."
},
{
"id": 1483591,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1483591/?format=api",
"text_counter": 197,
"type": "speech",
"speaker_name": "Mr. Joel Bosek",
"speaker_title": "",
"speaker": null,
"content": "I thank you."
}
]
}