Hon. Senators, it is my pleasure and privilege to welcome you to this first sitting of the Senate. I take this opportunity to congratulate you all on your election to the Senate. Hon. Senators, Senate Standing Order No.3 (1) (a) provides as follows:- “On the first sitting of a new Senate pursuant to the President’s notification under Article 126(2) of the Constitution, the Clerk shall- (a) read the notification of the President as published in the Gazette . Hon. Senators, pursuant to this provision of the Standing Orders, I now proceed to read the notification of the President. It is as follows:- “LEGAL NOTICE No.220 THE CONSTITUTION OF KENYA FIRST SITTING OF THE SENATE I paraphrase:- “In EXERCISE of the powers conferred by Article 126(2) of the Constitution of Kenya, His Excellency the President and Commander-in-

Hon. Senators, Standing Order No.3(1)(b)) further requires that on the first sitting of a new Senate, pursuant to the President’s notification under Article 126(2) of the Constitution, the Clerk shall:- “Lay a list of the names of the persons elected as Senators on the Table of the Senate;” I now proceed to lay on the Table of the Senate a list of the persons elected or nominated as Senators.

Hon. Senators, I have the following Communication to make. This Communication relates to the procedure that will be followed in the administration of the oath or affirmation of office. Hon. Senators, Standing Order No.3(1)(c) requires that on the first sitting of a new Senate, pursuant to the President’s notification under Article 126(2) of the Constitution, the Clerk shall administer the Oath or Affirmation of Office provided for in the Third Schedule to the Constitution to all Senators present in the Senate, in the order set out in Standing Order No.3(2). Standing Order No.3 (2) provides as follows:- “The Clerk shall administer the Oath or Affirmation of Office to Senators in alphabetical order using the following order of precedence- (a) Senators with the longest cumulative period of service in the Senate; (b) Senators with the longest cumulative period of service in the Senate and in the National Assembly; (c) Senators with the longest cumulative period of service in the National Assembly; (d) Senators with the longest cumulative period of service in any other legislature (e) all other Senators.

Hon. Senators, I wish to draw you attention to the fact that under our Standing Orders, the Clerk is obligated to make necessary facilitation for Senators with disability. I would like to draw your attention to the fact that Sen. (Dr.) Inimah Getrude Musuruve has opted to go the whole hog in this manner.

Inimah Getrude Musuruve (Dr.) Nominated Kabaka Boniface Mutinda Machakos County Kasanga Sylvia Mueni Nominated Kibiru Charles Reubenson Kirinyaga County Langat Christopher Andrew Bomet County

Hon. Senators, before we proceed to the next order, I would like to confirm that each Senator has taken and subscribed to the Oath and extend my congratulations to you all. In terms of Article 74 of the Constitution, you are now ready and have commenced your functions as Members of Parliament. Let us proceed to the next Order.

Hon. Senators, I have a Communication to make on the procedure that shall be followed in electing the Speaker. Hon. Senators, having undertaken the business of the Administration of Oath or Affirmation of Office to Senators we now proceed to the next business which is the election of the Speaker of the Senate.

Hon. Senators on your feet, kindly resume your seats.

Hon. Senators, Standing Order No.4 (1) provides:- “A Speaker shall be elected when the Senate first meets after a General Election and before the Senate proceeds with the dispatch of any other business, except the Administration of the Oath or Affirmation of Office to Senators present.”

On a point of order, Mr. Clerk.

Yes, Sen. Orengo.

Thank you, Mr. Clerk. I have a small house keeping matter. Mr. Clerk and the chair of these proceedings, you are aware about the provisions relating to leadership and integrity as contained in Chapter Six of the Constitution. Was there any process undertaken to make sure that those who apply for the position of Speaker actually would not undermine the authority of the Senate? This is by ensuring that there are no pending decisions against any of the applicants or no adverse finding against any particular candidate. Mr. Clerk, it would be terrible if at any one time the person who occupies the position of the Chair of this House has matters which were still pending or any adverse findings made by the previous Senate. That would undermine the authority of the House. I just wanted as a matter of clarity to know whether there has been compliance with the Chapter on Leadership and Integrity and that the House undertook a leadership and integrity test before putting the names before us for the process of electing the Speaker. Thank you.

Mr. Clerk, on the matter raised by Sen. Orengo I want clarification whether it is in order for him to bring up issues of Chapter Six, knowing well that the issue of election of Speaker is governed by the Constitution and is specifically provided for. Therefore, we cannot introduce general provisions of the Constitution on a matter which has specific provisions of the same Constitution.You will use general provisions, for example, Chapter Six when there are no specific provisions. Therefore, we will be starting on a wrong footing if we introduced the general provisions of Chapter Six – important as they are – when there are specific provisions on this issue. Finally, the issues which my learned senior, Sen. Orengo has raised are issues which have been canvassed even within the Judiciary. It has been concluded clearly and specifically that when it comes to electoral processes, nobody is barred until they have

Senator, we are looking at the request on the screen. Please put your request on the screen. Could we hear from Sen. Murkomen?

Proceed, Sen. Mutula Kilonzo Jnr.

Thank you Mr. Clerk. I am particularly concerned because this Senate is like the High Court, we deal with record and everything we do is on record. On the qualification of a Speaker, your duty is to ensure that the person is qualified under Article 106 and the Standing Orders. That person should also be qualified to be a Member of this House. My concern is that this House discussed one of the candidates at great length and passed a resolution concerning that person and their work as Governor of Bungoma County. For the record, I am holding the report of the Standing Committee of Finance and Budget tabled in this House on 5th April, 2017. There are 10 recommendations in this report. I am only concerned with Recommendation No. 10 which reads as follows: “In the event that the allegations being investigated by the Ethics and Anti- Corruption Commission (EACC) and the Director of Public Prosecutions (DPP) are substantiated, the Governor should be dismissed or otherwise be removed from office as contemplated under Article 75(2) of the Constitution.” First, I am not aware of what the Senator for Tharaka Nithi, Sen. (Prof.) Kindiki is talking about, that there has been any sort of clearance by a court in this country. If that was the case, that document should be tabled. Alternatively, you should tell us whether that document was tabled before you at the time that you qualified Lusaka Kenneth as a candidate capable of becoming a Speaker of this House. My concern is as follows and it is fair that you clarify. Since this was a report of April, 2017, in the event that these two bodies find that Governor Lusaka is culpable, what are we supposed to do if he is sitting on the Chair as the Speaker? It is fair that you tell this House and the nation; and under The Fair Administrative Action Act, you are under obligation to give us reasons of your decision. Sitting as a Clerk, where you are the presiding officer, you are then acting in a quasi-judicial capacity. I have not said that anybody has been adjudged guilty or not; but we are bound by our decisions as a Senate. I am not aware that if the decisions of the last Senate were passed, then they are not binding on this House. As far as I am concerned, they are binding. Mr. Clerk, you have put us in such a position that we might have to have our Speaker step aside while we are discussing him. Alternatively, when the Committee on Implementation is implementing this Report, we will be put in the crosshairs because we do not know what we are supposed to do. So, mine is to seek clarification. I am aware of

Proceed, Sen. Outa Fredrick Otieno.

Mr. Clerk, I want to follow up on what we discussed yesterday on the definition of the threshold required to elect the Speaker of the Senate. As from yesterday, you were not very clear.

Sen. Outa, please resume your seat. It is appropriate that we prosecute and dispose of the point of order that was canvassed by Sen. Orengo. The matter that you now put forward is a different matter and if we proceed in that manner, we will not be able to properly dispose of the business. Shall we be limited at this point to the specific matter that has been put forward and for which a determination has been sought by Sen. Orengo? Proceed, Sen. Linturi Franklin Mithika.

Mr. Clerk, I rise to speak on this particular matter. I would like to urge the Senators to live for the spirit and by the oath of office that we have just taken. I have listened very carefully to what Sen. Orengo has said and the replies by Sen. (Prof.) Kindiki and Sen. Mutula Kilonzo Jnr. I have also looked at what the Constitution provides for under Article 50 on matters related to fair hearing. I have also looked at what the Constitution provides for under Article 73(2) on matters related to elected state officers. I have also listened to what Sen. Mutula Kilonzo Jnr. has said regarding the report that was deliberated on by this Senate. If I understood him clearly, because I have not had the advantage of looking at the report, he says that in the event that the allegations are substantiated, then that particular state officer should have been removed from office by the application of Article 75 if my memory serves me right. In the absence of investigations having been completed and in the absence of this gentleman having been found culpable by the due process of law, then it will be very unfair for us to condemn him before the application of due process. I plead with Senators that where a matter has not been decided--- I would want anybody to reason out, assume that we deny this gentleman an opportunity to run for Office of Speaker, then these investigations are done and he is not convicted or found to have not been culpable, what will happen? The position will have gone. Since there are options of getting a State officer from office as provided by Article 251, I would persuade my dear colleagues to find that it is only necessary, for now, to allow the Senate to conduct the election of the Speaker other than dwelling on this issue. I understand these issues are important and mean a lot. However, until such a time that these matters are concluded in accordance with law, then we cannot continually speculate the outcome of these investigations.

Thank you, Mr. Clerk. First, I congratulate my colleagues for being elected and sworn in. Second, I think we are starting on the right note as Senators, being vigilant of issues that we think may hamper our performance or affect the running of this House in any way. That is forward looking and progressive. I congratulate my learned senior, Senior Counsel, Sen. Orengo, for bringing up this matter. However, we also have fidelity to the law. Article 106 of the Constitution makes it succinctly clear that for one to qualify to be a Speaker, it must be as provided by

We have important business ahead of us and we have four Senators who have not spoken to this matter. We will allow them and after that, we must make a determination and move forward.

Mr. Clerk, if you hear the submissions that have been made on the Floor of this August House, you think there is a candidate deemed to win. Nothing can be further from the truth. However, every candidate who has presented himself for this exercise stands a chance to be elected scrutiny by virtue of the votes that we will cast. Article Seven of the Constitution on Fair Administrative Action is very clear. I would want to imagine of that same law, that it is very clear in the provisions on enabling legislation. We must exhaust all means of appeal if at all one is to be found guilty or convicted. He needs to be given explanation why, for example, some of these conclusions may be made by whatever body or committee that would make such a decision. Mr. Clerk, the work of Parliament is not to convict. Our work is not to cast aspersions. In our parliamentary committees, we may look at each case based on its own merit. Therefore, if any candidate was to be found guilty or convicted after exhausting all forms of appeal or redress, then it is very clear that such convictions would have him found to be unfit to hold public office and he would vacate it. However, if that was not to happen and it has yet to happen, then this House cannot rely on inclusive procedures. Indeed, we are supposed to uphold the rule of the law. In fact, it is because of that same reason that Kenyans have found it fit that we be bestowed the privilege of being lawmakers. Mr. Clerk, I urge this hon. House to go ahead and allow us to exercise our mandate of electing our Speaker who will preside over the affairs of this House for the common benefit of all Kenyans.

Thank you, Mr. Clerk, for giving me this chance. I felt the need to speak on this issue because I happen to have served in the last Session of the Senate in the Committee on Finance, Commerce and Budget that looked into this matter. We heard submissions from the governor as well as from the petitioners. When I saw the trail of thinking that was set before us, I felt the need to speak so that my colleagues Senators that are here today, whose minds may get clouded by the kind of innuendos being created about a certain candidate, may have a clear view of what may have happened and, therefore, not be unduly influenced to vote against a certain candidate. I want to confirm from the onset the recommendations that have been read by Sen. Mutula Kilonzo Jnr.. Yes, we drafted those recommendations, but at no point did we meet as a Committee to ratify them. We were set to meet and discuss them so that we agree, but we lacked quorum. Be that as it may, we were supposed to table the report and have it properly debated. Second and most important is that the said person whose conduct is about to be discussed right here has served this country as a Provincial Administration Officer, Permanent Secretary (PS) in a cabinet Ministry and also as a governor. To reduce his entire Curriculum Vitae (CV) and only judge him based on the misconduct of his two or three officers who served under his administration, is a serious travesty on human

Hon. Senators, every person speaking right now is speaking on a point of order. We have difficulties on point of orders.

Thank you, Mr. Clerk. I stand to seek a clarification from my colleague who raised this issue. I served in the National Assembly in the Eleventh Parliament. This is a House of rules and order. We have the Standing Orders that guide every business that is transacted here. For example, Standing Order Nos.(4) and (5) on the Election of the Speaker and the Deputy Speaker stipulates the procedures to be followed. Therefore, reading these Standing Orders - and I believe the newly elected Senators who have just joined us, have also read them - there is no indication that the candidates vying for these positions needed to present clearance from those other institutions. I also want to comment on the issue of the independent constitutional institutions in our country. If a candidate is accused of misconduct or misappropriation of funds from an institution he was serving, then the court should issue on order on how to handle him. Therefore, we should stick with our Standing Orders as they are now. If there is need for us to change the Standing Orders - which I believe we have the power to do so – then before the presentation of the nomination papers, a candidate should be asked to clear himself or herself with those other constitutional institutions. I beg to stop here.

Finally, Sen. Mwangi Paul Githiomi.

Mr. Clerk, I do not intend to talk. The member of staff is showing me how to operate the machine.

That is fine. You may resume your seat. Sen. Mutula Kilonzo Jnr. what is your point of order?

On a point of order, Mr. Clerk. Is it in order for my friend Sen. Cheruiyot to mislead this House that the report of the Committee on Finance, Commerce and Budget was not approved whilst the correct position is that before a Paper is laid before the Senate, your office confirms first that the appropriate signatures are on that report, quorum had been attained in the Committee on Finance, Commerce and Budget, and the Speaker then seated here, would not have approved and allowed that document to be tabled here and go a step further to be discussed across the political divide where we condemned the actions of the governors of misappropriating resources?

I rule in your favour in that point of order because I have the report which you have referred to. It was laid on the Table of the House and the appropriate signatures had been appended. I think that disposes of that particular aspect of the matter. Hon Senators, the business before us is of tremendous importance. The point of order raised by Sen. Orengo is one that is of critical importance; it goes to the heart of the order in which we had commenced. We have begun the process for the election the Speaker. The point of order raised by Sen. Orengo is a question of eligibility of a candidate or candidates in light of Chapter Six of the Constitution on Leadership and

On a point of order, Mr. Clerk.

What is your point of order, Sen. Kajwang?

Mr. Clerk, with a lot of respect, you have made an order on the issue of cameras but, if you look at the positioning of the booths, they are right under the Closed Circuit Television System (CCTV) of Parliament. If you look at the booth on this side, it is right under that camera and the booth on the other side is right under the camera. Yesterday, a Member raised an issue out of history. This is not an idle concern; in the past such things that were supposed to be secret were subjected to undue scrutiny. Could you order the re-organisation of these booths so that they are away from the focus of the two cameras in the House?

Sen. M. Kajwang, that is a legitimate concern. There is every intention that the ballot be in secret. Therefore, we will make such adjustments as are necessary to assure you.

Where they have been moved, they are clearly out of the range of the cameras. Thank you for that concern. It was legitimate. It is a secret ballot in every sense. So, shall we begin then?

Hon. Senators, let us try to make this process a lot faster than the swearing in process. We commend you for your patience while we were undertaking the swearing in process. You do not need to go back to the Bar. Just walk to the booth, vote and resume your seat. The ballot has security features, serial numbers and it is stamped.

Hon. Senators, before we proceed, the rules provide that if in the course of marking the ballot a mistake is made, a substitute ballot paper may be issued, but I would need to draw attention.

Hon. Senators, shall we resume our seats? The last ballot has been cast. We are ready to proceed to the counting. Hon. Senators, from our records, each and every Senator, that is 67 of you present, has collected a ballot paper and voted. Therefore, there is no occasion to avail an opportunity for any other Senator. All Senators have voted. According to Standing Order No. 6(6), when it appears to the Clerk that all Senators who were present and who wish to vote have placed their ballot papers in the ballot box, the Clerk shall cause to be unlocked the box, examine the ballot papers and having rejected those ballot papers that are unmarked or spoilt, report the result of the ballot and no Senator who has not already recorded his or her vote shall be entitled to do so after the Clerk has unlocked the box. Pursuant to these Standing Orders, hon. Senators, it does appear to me that every Senator who is present and wishes to vote has done so. Therefore, pursuant to Standing Order 6(6) I direct now that the ballot box is unlocked so that each ballot paper be examined. Before we do so, I would like to invite in respect of every candidate if there is an agent who wishes to be present to witness the counting. I will just call out the candidates and if there is an agent or Senator who is willing to be the agent please come to the front on either side and we will allow you the opportunity to witness the counting. As a matter of democratic practice, it is useful to have a Senator volunteer to witness but if there is no one, we cannot compel him or her. Sen. (Dr.) Mbito wishes to be the agent for David Ekwee Ethuro. Sen. Faki volunteers to be the agent for Rameshchandra Govind Goraisia; Sen. Omanga will be the agent for Lusaka Kenneth Makelo; Sen. Kabaka will be the agent for Hon. Maalim Farah; Sen. Mwaruma will be the agent for Dr. Ondicho James Gesami and Sen. Linturi will be the agent for Ribathi Paul Gichuki I now direct that the ballot box be unlocked and the agents witness the process.

- Table opened the Ballot Box)

Hon. Senators, unless you are an agent, please, resume your seats. The Clerk is required to determine if the intention is clear in respective of each ballot that is marked. For the agents, is this contested?

I will declare this ballot as spoilt in so far as the mark traverses two candidates. Hon. Senators, we are now through with the counting and tallying. We are indebted to the agents who have witnessed the exercise . I proceed now to announce the results as follows:

Order Senators, there is a spoilt ballot of Sen. Ben Oluoch. I order that it be destroyed and another one issued. Please issue another ballot.

Order, hon. Senators, the last ballot has been cast; we are ready to proceed with the counting. Sen. Omanga and Sen. Wario Juma, please resume your seats. We would like to proceed to counting.

Hon. Senators, our record show that 67 Senators have voted. Each and every Senator was present and has voted. In the same manner as we did for the first ballot, we will invite agents in respect of the two candidates.

Shall we then proceed to unlock the boxes and pour out the contents? Shall we commence the counting in the same manner as we did the last time?

Hon. Senators, first, let me thank the agents who have assisted us with the second ballot. I draw your attention to Standing Order No.7(4) which requires that in the second ballot, the candidate who receives the highest number of votes be declared to have been elected as the Speaker of the Senate.

Sen. Githiomi, you may take your seat. In accordance with Standing Order No.7, the results for the fresh election we held are as follows. The votes cast were 67; there were no spoilt votes.

You may take your seats, hon. Senators.

Hon. Senators, distinguished guests, ladies and gentlemen; I am humbled and overwhelmed by the great honour and privilege you have bestowed upon me by electing me as your Speaker of the Second Senate of the Republic of Kenya under the Constitution of Kenya 2010. The immense confidence and trust that you have placed on me today profoundly humbles and makes me proud at the same time. I, therefore, accept with humility and pledge that I shall perform to my utmost ability the constitutional responsibilities and duties of the office of the Speaker of the Senate for the next five years with diligence and appropriate tact.

Allow me with great pleasure to congratulate and salute all of you, the new Senators of the second Senate after a well fought battle in the just ended general elections. Kenyans have now reposed their faith in your capable hands and it is doubtless that they have high expectations on you. I also wish to recognise my worthy opponents, Rt. Hon. Ekwee Ethuro, Hon. Farah Maalim, Hon. (Dr.) James Gesame, Mr. Rameshchandra Gorasia and Mr. Paul Ribathi for the valiant, mature and well fought competition. We have ably demonstrated that we can compete democratically and without rancor in a dignified race.

Hon. Senators, Standing Order No. 13(1) provides that: “As soon as practicable after the election of a Speaker following a General Election, a Deputy Speaker shall be elected.” Standing Order No. 13(4) further provides that: “The procedure for electing a Deputy Speaker shall, with necessary modifications, be the same as that prescribed for the election of the Speaker.” Hon. Senators, for the position of the Deputy Speaker, the following candidates in alphabetical order were validly nominated as at the close of the nomination period: 1. Irungu Kang’ata 2. Johnson Arthur Sakaja 3. Kimani Wamatangi Paul 4. Susan Kihika Pursuant to Standing Order No.8, a candidate may withdraw his/her candidature before a ballot is cast. In this regard, I wish to bring to your attention that on Tuesday, 29th August 2017, Johnson Arthur Sakaja, by notice to the Clerk, withdrew the candidature for the position of Deputy Speaker of the Senate. Similarly, yesterday Wednesday the 30th August 2017, the other three candidates namely, Irungu Kang’ata, Kimani Wamatangi Paul and Susan Kihika by respective notices to the Clerk, withdrew their candidature for the position of the Deputy Speaker of the Senate. Arising from the withdrawal of candidature by all of the four candidates who had been duly nominated, we now have no candidate for the position of Deputy Speaker. Hon. Senators, Standing Order No.13 (1), provides that:-

Hon. Senators, there being no other business, the Senate now stands adjourned until such a date as shall be notified as a date set opening of Parliament. The Senate rose at 2.35 p.m.