Clerk, do we have quorum?

Clerk, proceed to call the first Order.

Hon. Senators, this morning at the commencement of the hearing for the removal from office, by impeachment, of His Excellency Rigathi Gachagua, the Deputy President of the Republic of Kenya, Legal Counsel for the Deputy President; Mr. Ndegwa Njiru, Learned Counsel, raised a preliminary objection on the legal representation for the National Assembly. Learned Counsel opposed the appearance of Hon. James Orengo, SC, who is the serving Governor of Siaya County and, therefore, a State Officer. 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.

Learned Counsel submitted that the Hon. James Orengo, SC, is a full-time serving state officer as per Article 260 of the Constitution, as read together with Section 26, Subsection (2), of the Leadership and Integrity Act, which bars a full-time state officer from engaging in any other gainful employment. Counsel further submitted that it would be prejudicial to the Deputy President if the Senate allowed Hon. James Orengo, SC, to represent the National Assembly in these proceedings. Counsel drew the attention of the Senate to the precedent set in the matter of the proposed impeachment of the Deputy Governor of Kisii County, Hon. Richard Monda, in which a decision was taken to bar Hon. Sylvanus Osoro, Majority Whip of the National Assembly and Member of the National Assembly for South Mugirango in Kisii County, from appearing as Counsel for the Kisii County Assembly. In his submission, Counsel cited Article 77 of the Constitution and Section 26 of the Leadership and Integrity Act, as well as the decision of the High Court in Office of the Director of Public Prosecutions versus Orengo; Manduku and 2 others (interested parties) (Constitutional Petition 204 of 2019) (2021) KEHC 456 (KLR) (27 April 2021) (Ruling), where Hon. Justice Ogola found and ruled that the continued representation of the 1st interested party, Mr. Manduku, by the Respondent, Hon. Sen. James Orengo, SC, as he then was or any other state officer is against the spirit of Chapter 6 of the Constitution, for failing to conform to the mandatory provisions of the Leadership and Integrity Act. The judge ruled that in that case, there was an inescapable conclusion of conflict of interest in Senator Orengo representing the Petitioner, highlighted by the fact that the interested party, Mr. Manduku, the Managing Director of Kenya Ports Authority (KPA) may at one time be summoned to appear before a Committee of the Senate to answer to some of the matters that the Petitioner was being investigated on. In response, Mr. Eric Gumbo, Learned Counsel for the National Assembly, submitted that Article 77 of the Constitution is the primary law that restricts activities of state officers and it specifically prohibits a state officer from engaging in other “gainful employment.” Counsel further relied on Section 26 of the Leadership and Integrity Act, which he submitted has defined gainful employment and in this matter no evidence had been laid that the Hon. James Orengo, SC, was participating in gainful employment. Counsel referred the Senate to the decision of the High Court in Busia Election Petition No. 3 of 2013 where the Court interpreted Article 77 of the Constitution and Section 26 of the Leadership and Integrity Act, 2012. Counsel also cited the decision of the court in the Mwilu case, which defined conflict as where one is confronted by two different interests where one is competing with the other. Learned Counsel for the National Assembly submitted further that no prejudice has been demonstrated that would arise or be occasioned to the Deputy President by the participation of Hon. James Orengo, SC, in these proceedings. Learned Counsel for the National Assembly sought to distinguish the decision by Hon. Justice Ogola in the Office of the Director of Public Prosecution Versu Orengo; Manduku and 2 Others (Interested Parties) (Constitution Petition 204 of 2019) on the basis that this case turned on the fact that Hon. James Orengo was at that time a sitting Senator before whom the matters in respect of which his client was charged could 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.

potentially come for adjudication in the Senate and that no such possibility exists into the current matter with Hon. James Orengo, SC, as the Governor of Siaya County. In his rejoinder, Mr. Njiru, Learned Counsel, submitted that Hon. Orengo, SC, is the serving Governor of Siaya County and, therefore, a full-time State officer and by that fact is in violation of Article 77 of the Constitution. Further, Mr. Njiru submitted that prejudice is not one of the applicable tests under Article 77 and Section 26 of the Leadership and Integrity Act, but that the only applicable test is whether or not Hon. Orengo is engaged in gainful employment. He argued that the National Assembly had not proved that Hon. Orengo was providing probono services in this matter. Hon. Senators, Article 77(1) of the Constitution provides that “a full-time State Officer shall not participate in any other gainful employment”. Further, Section 26 of the Leadership and Integrity Act provides that “a full-time State Officer shall not participate in any other gainful employment” while Section 26(2) defines “gainful employment” as – “Work that a person can pursue and perform for money or other form of compensation or remuneration which is inherently incompatible with the responsibilities of the state office or which results in the impairment of the judgment of the state officer in the execution of the functions of the state office or results in conflict of interest in terms of Section 16.” Having considered the matter, it is important to state that a state officer must inspire confidence. However, it is trite law that he who asserts must prove. In this regard, I wish to observe that the Learned Counsel for the Deputy President did not adduce evidence to prove and demonstrate the allegation of gainful employment. In fact, it is somewhat surprising that Counsel attempted to shift the onus of proving gainful employment to the National Assembly. That argument is untenable. As to the Ruling of the Senate that barred Hon. Osoro from appearing for the County Assembly of Kisii in the impeachment proceedings of the Deputy Governor of the Kisii County Government, it is clear that what was objectionable was that Hon. Osoro was not only a Member of Parliament for a constituency in the same county whose Deputy Governor’s impeachment was in issue, but was also a high ranking Member of the leadership of the National Assembly, and by extension, of the same Parliament before which the impeachment was being undertaken. It was ruled that in these circumstances, it was clear that in the minds of the public, the fine distinctions of the bicameral Parliament would be lost and their confidence in the impeachment process would entirely be undermined. In the same breath, as rightfully contended by Counsel for the Deputy President, it is true that in both Article 77 of the Constitution and Section 26 of the Leadership and Integrity Act, no test of prejudice is expressly provided for. It, therefore, follows that both the contention of the Counsel for the Deputy President that his side would be prejudiced by the appearance of James Orengo, SC, and the rebuttal by the National Assembly that no prejudice will be occasioned are moot. Hon. Senators, ladies and gentlemen, having analysed the preliminary objection raised and for the reasons I have given, the preliminary objection raised on the 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.

appearance for the National Assembly by Senior Counsel James Orengo, SC, is hereby dismissed. We will now hear the response on the second objection raised by the Counsel for the Deputy President. Counsel, you have five minutes to do that.

Thank you, Mr. Speaker, Sir. I will endeavour to respond to the Preliminary Objection within the time allowed for us. The objection was premised on Rule 20 governing the proceedings that are currently before this House. The rule reads that: “In presenting its evidence, the Assembly shall not introduce any new evidence that was not a part of the allegations against the President by the National Assembly as forwarded by the Speaker to the National Assembly to the Speaker of the Senate." Mr. Speaker, Sir, the context of this rule is important. A true reading of this Rule would mean that every material that was available before the National Assembly while deliberating the Motion that was before it is what is contemplated to have been sent to the Speaker of the Senate. The question, therefore, that we would be asking ourselves this afternoon is whether there is any new evidence that has been adduced by the National Assembly. Our answer to that is an emphatic no. Why do we say no? We say no for the first reason that the reference to the letter forwarding the material that came from the National Assembly contained amongst other items paragraph 21 which spoke to a report of a public participation that was conducted by the National Assembly. That report was tabled on the Floor of the House was adopted by the House. Deliberations in relation to that report were made. Not a single objection arose. Therefore, it certainly follows that, that material from public participation became a necessary part of the material that was considered before the National Assembly. To give it context, in addition to the material that was presented by the Mover of the Motion to the National Assembly, hon. Members of the National Assembly had their deliberations, which were also captured in the HANSARD. In that HANSARD, material was introduced by way of questions, by way of contribution from the Floor of the House. That material too forms part of evidence of proceedings before the National Assembly. It is, therefore, our submission that just in the same manner in which the HANSARD from the National Assembly forms part of a report that was presented before you, the report on the public participation too is an important component of that report. There must have been a reason why that public participation was conducted. In our humble submission, Mr. Speaker, Sir, the appropriate test that one would want to apply on whether or not to allow that material to be before this honourable House is the all-celebrated test of relevance. It should not be lost that sitting as this House is sitting this afternoon, it is a quasi-

proceeding. It is a proceeding that is also inquisitorial. Therefore, what is important is that the material that is presented by way of public participation or by any other way is relevant to help the House determine the truth or otherwise of the issues that have been raised for the consideration of this House. 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.

How then, Mr. Speaker, Sir, do we get to answer that question? I have had a look at the specific document that my learned friend, Mr. Ndegwa Njiru, objected to. It is an affidavit by one Mr. Peterson Njomo Muchira. Mr. Njomo Muchira says that he followed the proceedings before the National Assembly. He says in particular at his Paragraph 4 that he has also had occasion to look at the response filed by His Excellency the Deputy President of the Republic of Kenya at Part 1.1 of his response. He says that he has personal knowledge of the items that would give clarity to part of the assertions in response by His Excellency the Deputy President. For context, that Part 1.1 is contained in Volume 6 of one of the volumes that were presented before you. It is the volume speaking to the response by His Excellency the Deputy President. At part 1.1, it speaks about a hotel called the Olive Garden Hotel. In particular, at Part 1.1.4, His Excellency the Deputy President says, in accordance with these instructions, the Hotel was sold by executors to a third party. Mr. Peterson Njomo Muchira, on the other hand, says: “I have information that---

Counsel for the National Assembly, you have one minute.

Thank you, Mr. Speaker, Sir. Mr. Peterson Njomo then says that he has information, which indicates that number one is a shareholder to the company, which bought that hotel and that according to him, he got into a secret transaction with His Excellency the Deputy President to buy it. It is our submission that, that is material that is relevant for purposes of consideration of the matter that is before this House. I urge that that preliminary objection be dismissed. I am most obliged.

Thank you. Hon. Senators, ladies and gentlemen, we need not take a break to allow me prepare my ruling. Just give me a minute; I put my thoughts together so that we may make progress.

Mr. Speaker, Sir, with your kind permission, I was just seeking your guidance on whether I need to do a rejoinder because I am the one who had moved the National Assembly in respect to the---

Very well, you may go on as I put my thoughts together.

Thank you, Mr. Speaker, Sir. In response to what my learned friend has raised, the objection had nothing to do with the public participation as cited. We simply raised an objection that goes to the roots of the ability to enjoy proceedings that will appear fair to all parties. My objection was premised on the non-derogable right to a fair hearing. The Counsel has addressed you that the deponent of that affidavit, Mr. Njomo, was responding to the Deputy President's response. There is nothing that can be far from the truth; this is a witness who is being brought to attempt to panel beat the case for the National Assembly. The question and the 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.

test, is shall we suffer prejudice? Shall our rights be deemed to have been held? That is a non-derogable right to a fair hearing. This is not a witness who was before the National Assembly. Where is a source of this information in the document that was submitted to this House by the Speaker of the National Assembly? Where does it sit? Who sits to suffer prejudice if the same is admitted? Is it a state organ or an individual in the name of the Deputy President of the Republic of Kenya? We urge you to uphold our ruling and justice be seen to be done, even the people following these proceedings. I am most obliged.

Now, hon. Senators, the second preliminary objection raised by the Counsel for the Deputy President was that the following documents, which were submitted by the National Assembly on Monday, 14th October, 2024, were not part of the bundle of documents of the National Assembly that was served on the Deputy President on Wednesday, 9th October, 2024. (a) An affidavit signed by Mr. Peterson Njomo Muchira; and (b) The document of the National Assembly marked as Volume 8(a): responses from various government agencies. Counsel for the Deputy President stated that these documents prejudice the Deputy President's case and amounted to a trial by ambush by the National Assembly. Counsel urged the Senate to bar the introduction of these two documents as they constitute new evidence in terms of Rule 20 of Part 1 of the Second Schedule to the Senate Standing Orders. Counsel for the National Assembly opposed the preliminary objection raised by the Counsel for the Deputy President. Hon. Senators, ladies and gentlemen, Rule 20 of Part 1 of the Second Schedule to the Senate Standing Orders provides, and I quote- “In presenting its evidence, the Assembly shall not introduce any new evidence that was not part of the allegations against the President by the National Assembly, as forwarded by the Speaker of the National Assembly to the Speaker of the Senate.” As I indicated in my earlier Communication, by a letter dated 8th October, 2024, I received a bundle of documents and records of proceedings in the National Assembly in this matter. Thereafter, on 9th October, 2024, pursuant to Rule 6 and 7 of Part 1 of the Second Schedule to the Senate Standing Orders, the Office of the Clerk of the Senate sent invitations to appear to both parties. The parties were required, amongst other things, to specify any other evidence to be relied on in this matter. 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.

In response to this invitation, on Monday, 14th October, 2024, the National Assembly filed further documentation. Having analysed the documentation submitted against the grounds for the proposed impeachment, I find that the documents objected to constitute evidence in support of the allegations already made in the Impeachment Motion as received from the National Assembly. It is noteworthy that the parties were instructed when sending responses to indicate any other evidence to be relied on. Accordingly, the documents being referred to do not constitute new evidence, but form evidence in support of an allegation which was already made. That is why Rules 6 and 7 of the Rules of Procedure permit the Senate to receive witness statements, list of witnesses to be invited and any other evidence to buttress an allegation already made. What is not allowed is to introduce new allegations or to introduce any evidence that is extraneous to the allegations made in an Impeachment Motion. In the event, it is my considered view that the affidavit and document marked as Volume 8(a) being referred to fall within the permissible documents of our Rules of Procedure. I, therefore, rule that the objection is hereby dismissed. Hon. Senators, having dispensed with the preliminary matters in this particular hearing, we will now move to hear--- Yes, Counsel for the National Assembly.

Mr. Speaker, Sir, with your very kind permission and indulgence, we as well on the part of the National Assembly had two quick preliminary issues, which we want to draw your attention to. They are quick housekeeping issues. If you permit me, just in two minutes, I may be able to draw them to your attention.

You have exactly two minutes.

I am most obliged, Mr. Speaker, Sir. The first one is in relation to the bundle of documents that we have filed before this House to help it determine the matter that is before it. In particular, we have one of our volumes, Volume 4, as a document presented before this honourable House. When we were perusing our documents yesterday, we did realize that one of the documents in that Volume 4 running from page 135 to 140 appears to have been inadvertently copied just on one part. In other words, in the course of the printing, we missed out the even numbers and just printed out the odd numbers. We have since availed that document. It is not a new document. The only thing that had happened is that inadvertently, we did not get the even numbers printed. We have since done that and with your permission, we urge that we be allowed to rely on that document. We filed it and served it to our colleagues, Counsel, appearing for His Excellency the Deputy President, as well as to the House, that it may be relied upon. That is the first preliminary intervention that we seek. The second issue is in relation to a letter that we did to you on 14th October, 2024, wherein we sought the help of this House through your Office to have summons issued to the Chief Executive Officer (CEO) of the Ethics and Anti-Corruption Commission (EACC) for purposes of helping give testimony to matters that are before this House. The reason for us seeking this preliminary intervention is to ask formally that those summons be issued so that the said witness could attend to help us determine the matters that are before you. In our letter, we indicated the specific item that he is to 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.

testify to. It is equally our humble plea that an order be made that summons be issued to have the CEO of the EACC attend as a witness. I am most obliged, Mr. Speaker, Sir.

Counsel for the Deputy President, what say you?

Mheshimiwa Speaker, Hon. Senators, with regard to the first request, which I understand to mean that when they were photocopying some pages were left, we will examine that and see what was served on us and what those pages that are now being introduced contain. With regard to summons, to ask individuals from the EACC to come and give evidence, we draw your attention to Article 50 of the Constitution, which is a fulcrum of a fair trial. This honourable House is executing a quasi-judicial function of the most weighted nature regarding the Proposed Removal from Office of the Deputy President of the Republic of Kenya, elected by the people of Kenya. Nothing would be more prejudicial than to call witnesses whose statements or affidavits we have not seen. The whole purpose of affidavits and witness statements is to enable the other side, in this case, the Deputy President, to seek legal advice, give instructions on how best to respond to it. This honourable House has fixed two days for this trial. One of the issues we will be raising is these allegations and you are going to go through them, against the Deputy President, suspicions, conclusions, on matters that were never referred to Directorate of Criminal Investigations (DCI) on Kiambu Road, who are trained to investigate these matters. Nothing was referred to the EACC or any of the other investigative agencies, including money laundering. We strongly object and ask that the record of this honourable House reflects that if this is permitted, for the National Assembly to call witnesses at this stage without first furnishing us with their witness statement and affidavit, the case of the Deputy President will be irredeemably prejudiced. So, we object very strongly to that application.

Counsel for the National Assembly.

Mr. Speaker, Sir, in brief rejoinder to the objection by learned Senior Counsel for the Deputy President, in the invitation to attend that was extended by this House to the National Assembly, it included a request as to a list of witnesses the National Assembly required summoned. We responded to that request. All we seek is a confirmation that our response has been actioned. What the learned Counsel for the Deputy President is objecting to is not our request, but a response to a request made by this august House. I am most obliged.

Counsel for Deputy President, do I get it that you have no problem with the first request made by the National Assembly?

Mr. Speaker, Sir, we would want to see those pages and, at that time, say, yes or not. It is the second one.

Clerk, has that document been made available to the Deputy President’s team? In the next few seconds, make it available so that we make progress. Hon. Senators, if there is any Senator who has not gotten that document, let the Chair know so that we supply it to you. 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.

Sen. Madzayo, Sen. Olekina, Sen. Miraj, Sen. Kavindu, Sen. Crystal Asige and Sen. M. Kajwang’.

Mr. Speaker, Sir, just to highlight on one point based on what my learned friends for the National Assembly have said. The letter they refer to is dated 14th October, 2024, addressed to the Speaker of the Senate by the Clerk of the National Assembly. It does not contain any information about any other witnesses being sought. It does not indicate that the EACC will be asked to produce any other witness, affidavits or documents.

Take your seat, Counsel. Senior Counsel Paul Muite, are you in receipt of the document now?

Mr. Speaker, Sir, we are seeing this document for the first time now; about three or four minutes ago. It has many pages and we were quickly going through it. In order to save the time of this honourable House, perhaps, you could give us the opportunity to go the documents. Inaonekana kama hii ni ukarabati. If you agree, Mr. Speaker, Sir, we can get on with the first prosecution witness, giving evidence. As soon as we have gone through this, then we shall come to you.

Thank you for your wisdom, Senior Counsel. The other limb that has been raised is on the issue of summons to witnesses. If you look at our Rules of Procedure, particularly Rule No.10 which provides as follows: “The Senate may at the request of the National Assembly or the President and in this matter, the Deputy President, invite or summon any person to appear and give evidence before the Senate.” So, the summons that have been sought are in line with the spirit of Rule 10 of our Rules of Procedure. You may attack the evidence of these witnesses who have been summoned if their evidence introduces other allegations and at that particular juncture, the legal team of the Deputy President may raise an issue and I will certainly hear you.

Mr. Speaker, Sir, permit me to place it on record that the Rules of these honourable Senate must and have to be respected. Even above respecting the rules of this honourable House and our Constitution has to be respected. Article 50, the right to a fair trial, which in terms of Article 25(c), you are aware that that is a right that cannot be compromised in any manner. There has been no explanation as to why the EACC was never asked to investigate the allegations before they were tabled before the National Assembly and before a decision was taken. This is because the National Assembly cannot investigate criminal offences. In implementing Chapter 6 of the Constitution, the Act of Parliament says that a conviction is necessary and now, you want to reverse the will of the Kenyan people in electing the Deputy President, without him being reported or the matter being investigated or him being convicted. Mr. Speaker, Sir, I plead that you reconsider your exercise of that discretion in permitting witnesses from the EACC to be called in order for the Deputy President to have a fair trial before this Senate.

Senior Counsel Paul Muite, you are actually arguing your case. I said that there was invitation sent to both parties and each party was requested to submit a list of witnesses. 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.

The National Assembly submitted a list of witnesses with a request under Rule 10 of our Rules of Procedure for the Senate to summon. That is the request that has just been made by the National Assembly and it is permissible and within our Rules of Procedure. Senior Counsel Paul Muite, I will refer you to Rule No.30 of our Rules of Procedure, where the speaker's ruling is final. Let us leave the matter there. I have made my ruling. Let us make progress.

Mr. Speaker, Sir, I agree entirely. You are the one sitting in the seat of power; your word is final. I have said what I have said. Your rules are subject to the Constitution. I accept your ruling.

We will move to the second limb of this hearing. Clerk, call the next Order. Summons should be issued to those witnesses.

Hon. Senators, ladies and gentlemen, we will move to the opening statements. Each party will have half-an-hour to make their opening statement, starting with the Counsel for the National Assembly. Your time starts running from now.

Thank you, Mr. Speaker, Sir, and hon. Members of the Senate. Speaking for us, this is a momentous occasion in our history. This must be recorded as such. The United States of America (USA) has been 248 years old since its Independence. For the entire two-and-a-half centuries, no Vice President of the USA has undergone a process of removal by way of impeachment. In a way, we are making history. This is such an important occasion for the 13th Parliament and this Senate that it will go down in the annals of history that the first impeachment of a Deputy President in the Republic of Kenya was undertaken by this Senate. We come here with a lot of confidence that the Senate is not new to the process of impeachment as understood under our Constitution. Indeed, the Senate has handled many impeachment proceedings related to the Office of Governors and Deputy Governors. More importantly, this Senate has been a great contributor to establishing the jurisprudence revolving around the impeachment process in the Republic of Kenya. Many of the cases that have gone for determination in our systems of courts, High Courts, Court of Appeal and the Supreme Court have involved the participation of the Senate. As we address you today, we are not addressing a Chamber that is dealing with a novel idea. Indeed, by dint of Article 10 of the Constitution, which requires all State organs and offices to make any decisions or apply the law and the Constitution. They are 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.

required to apply the Constitution of the Republic of Kenya. This is by dint of Article 10(1). It should not be lost to anybody that the application of the Constitution in decision- making is entirely in the province of the courts. This Senate on this issue, you are seized of this matter. It is an exclusive jurisdiction that is granted to the Senate to undertake a trial for the impeachment and removal of a deputy governor or governor or a Deputy President or President. This is an exclusive jurisdiction that even the courts have spoken about many times. The courts can intervene in limited and justified occasions that merit their intervention. However, it should never be lost that this is the trial court, if I may put it that way. We also come here knowing that the Senate is a repository of the law with regard to impeachments. All the cases involving the impeachment of governors and deputy governors that have gone to the courts have involved the participation of the Senate. If we were ever to talk about a repository of the law regarding the removal of state officers by way of impeachment, it is the Senate. It should not be lost historically from comparative studies in various jurisdictions why this role in our constitutional design was left to the Senate. It was a decision by the framers of our Constitution that it should be an exclusive matter to be dealt with by the Senate. Having said that, I was advised by the leadership of our National Assembly who are our clients, to read a certain passage of the Bible. I have a copy here. I had to carry this Bible. I read the Bible a lot to myself, but never on this kind of occasion. This is the Book of Exodus 22;22-24. I will read the St. James Version, which I prefer because of the language and from the Living Bible whose English is more appropriate – King James Version– “Ye shall not afflict any widow, or fatherless child.

Mr. Speaker, Sir, I rise to raise an objection.

Kindly, proceed.

Mr. Speaker, Sir, we owe the Deputy President elementary decency. We owe it to the Deputy President to be basically decent in these proceedings. I want to know whether Counsel at the Bar can adduce this kind of evidence that is not contained in any evidentiary material before the Senate. I would also like to know which Ground in the 11 Grounds in the Impeachment Motion this evidence from the Bar is supporting. I repeat, Mr. Speaker, Sir. We owe the Deputy President the most basic decency. I object.

Senior Counsel Orengo, are those abatements contained?

They are contained. They are all here.

Then kindly refer to the documents.

That is Volume 4. I am not referring to them because if I were to refer to every document, it would take a lot of time but I only have 30 minutes. If you look at Volume 4 of the document on public participation, from page---

Volume 4 of the National Assembly documents. Which pages?

Volume 4 of the National Assembly documents, page 114. In fact, this page also contains the Will and the Deputy President is the one who will be relying on it. The death certificate is contained on page 119. It shows the only person who attended the deceased - that is the brother of the Deputy President at that time - was his daughter. She was the only person present, then there is the Will. This is why I was raising this matter. On page 128 of the documents, there is a letter by Mr. Mathenge and Mr. Njoroge Regeru, who together with Mr. Rigathi Gachagua, were the joint Will executors. They are complaining about the conduct and action of the Deputy President as an executor of the Will. A family member of the late Nderitu Gachagua, on page 129, paragraph 8 states; “from bank statements for this account seen by us, you transferred some funds from these accounts to other persons as follows--- On the date when Nderitu Gachagua died on 24th, the Deputy President was already withdrawing money. When he died, he was only with his daughter. They have gone ahead to say: “on 19th May, 2017, again, another amount of money was withdrawn and paid to M/s Wamunyoro Investment Limited.” You will find this story in the documentation and part of it is what Mr. Njomo was saying---

Counsel for Deputy President, just have your seat. When your time comes, you will make the rebuttals. Proceed, Senior Counsel.

How many minutes do I have? 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.

Mr. Speaker, Sir, I respect your direction. I am willing to take a seat right away. However, just to point out something; the document you are being referred to is the document you held in abeyance, because it was given to us later for purposes of our consideration. Secondly, remember that my learned colleague talked about how my client travelled to London without talking to any doctor. These are factual claims that are just coming from the Bar. Thirdly, the opening statement speaks to the Motion and the grounds therein. I beseech that parties restrict themselves to the Motion and the grounds therein. The facts you are now being referred to have no basis or grounds in the Motion, unless the learned Senior Counsel, His Excellency Governor Orengo, can draw your attention to any ground in the Motion that those facts are now addressing. Mr. Speaker, Sir, I want to repeat what I said earlier that the ruling is yours. However, we owe it to the Deputy President and the integrity of our checks and balances institutions to maintain basic decency in these proceedings. I rest.

Counsels, I cannot tell you how you will make your opening statements. If you go outside the allegations, that is up to you. The Senators are here listening and they will make the necessary decision at the end of it. Senior Counsel Orengo, there is an averment that you have made, that the Deputy President of the Republic of Kenya, on a certain date that you indicated, travelled to London.

Yes. The evidence is---

Because of his sick brother. On the side of the sickbed, he made his brother sign a Will. Is that contained anywhere in the documents from the National Assembly?

Mr. Speaker, Sir, if you look at Volume 4 on the pages that I indicated, right from page 113, it shows the flight he took and at what time. It was a British Airways flight on 16th and he arrived in London on 17th. The only business that comes out from that document and his documents is that, he got a Will signed. There is no further evidence of his activities in London until 24th, when the only activity in which he did participate, was to be present when his brother died in London. I am saying all these in relation to the allegations that we have against the Deputy President---

Mr. Speaker, Sir---

Counsel, ordinarily no objections are raised during the 30 minutes of opening statements. I have tried to accommodate, but you are now stretching my generosity a bit too far. Allow Senior Counsel Orengo to conclude. In your opening statement, you may choose to make a rejoinder.

I would like to make my conclusion. From the way his brother's accounts were raided, that was continued to the time when Olive Gardens was acquired for a sale by proxy of Kshs412 million. He bought property in Nyeri, the Outspan and Treetops for an amount exceeding Kshs800 million. 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.

Part of that money was not money coming from him. Evidence will show that he was raiding monies that truly belonged to the estate of his late brother to acquire property. This an offense by law. That, these were proceeds of crime committed by the Deputy President to acquire property. To drive this point home, the judgment by Justice Maina, which is also part of the record, where she made a determination and that judgment stands, that, the money that was found in an account with a financial institution, in excess of Kshs200 million, were proceeds of crime. There is documentation here and we will show it in evidence that the Kshs200 million, was the same money that was used to acquire Treetops and Aberdares as part of the money that his sons were able to use to acquire those properties. The acquisition of these properties came out of criminal conduct, and all the particulars of the criminal conduct is found in the documents that were presented before the Senate. Mr. Speaker, Sir, it is critical that we look at the authority of the Office of the Deputy President vis-à-vis that of the President, the doctrine of collective responsibility. I showed why the Office of the Deputy President is so important in carrying certain functions so long as it lives to the true spirit of the Constitution. Many times, the incidents have been shown, acts of insubordination, for instance, when he issued a press statement in Mombasa after the President had issued a statement that went contrary. That is absolute insubordination to the President, who is his boss. If one can talk about insubordination, that was an act of insubordination. Lastly, the other issue that I need to bring out is that the Senate is aware of the fact that at the end of every five years, you pass a basis for allocation of resources here in the Senate and they abide by certain principles which are contained in Article 203 of the Constitution. This issue about certain areas being preferred because they are shareholders goes against the spirit of the Constitution. The notion that people can be appointed in the Government on the basis of how they voted or on the basis that they are shareholders, is not also borne by the Constitution. This is because the executive authority that is granted to the Executive requires that even in allocation of revenue and appointment of people to serve in the public service, must depend on regional balance. So, to talk about shareholders, some people being able to reap on the basis of shareholding, is repugnant and in conflict with the provisions in our Constitution. Mr. Speaker, Sir, I would want to say this with all the seriousness it deserves. This Constitution is supposed to work. However, it can only work if state officers are compliant with the provisions of the Constitution---

You have two minutes to wind up.

The adopting of collective responsibility and the authority of Members of the Cabinet, spring from the fact that they are all individually and collectively responsible to the President. If that primary principle cannot be applied, then it will be difficult for any Government elected, to function in a manner that it can deliver services to the people of the Republic of Kenya. 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.

I urge this Hon. Senate, that having painted that large picture, the next phase when you will be listening to the evidence and look at the exhibit that we have attached, you will find that a strong case has been made out for the impeachment and removal from office of the Deputy President of the Republic of Kenya. This Senate should not shy away from undertaking that responsibility. It does not matter that there is a matter that could be taken to the DCI or to the EACC. The role of the Senate is different - To undertake oversight over those who are given responsibility to manage the affairs of the country. That does not depend on the role of any other agency or body created by the Constitution. Your role is to demonstrate to all people in state offices that, this oversight role that you play, whether it is that of impeachment, that, it is not cosmetic. Where there is evidence like the one that we are showing and adducing before you, that person should suffer the consequences.

Senior Counsel, I am afraid your time is up.

I thank you.

Counsel for the Deputy President. The floor is yours.

Thank you, Mr. Speaker, Sir and distinguished Senators. My name is Elisha Ongoya. I stand here to make the Deputy President's opening statement. Allow me, Mr. Speaker, Sir, distinguished Senators, to open by reminding us some fundamental principles. We are sitting here today as a Senate to discharge a constitutional mandate. Before you are given the cudgels to start discharging any mandate in this Senate, the Constitution demanded that you had to take an Oath of Office before you do anything else. I now understand better why that Oath of Office was described and why it was framed the way it was framed. The Deputy President reminds you the following terms in your oath of office, before you assumed office to discharge the functions of Senators: You have to bear true faith and allegiance to the people and the Republic of Kenya. You have to obey, respect, uphold, preserve, protect and defend the Constitution of Kenya. You have to faithfully and conscientiously discharge your duties as members of the Senate. I submit respectfully that the case regarding the proposal to remove the Deputy President from office by impeachment, may appear to put the deputy President on trial, but that is only in the most technical sense of this process. At a more significant level, what is on trial throughout these proceedings is the resilience and steadfastness of our Constitution, our constitutional institutions of checks and balances and their capacity to withstand any form of waves and pressures. That is what is truly on trial. His Excellency Rigathi Gachagua beseeches this House to keep in mind that we have a Constitution, a constitutional order and a constitutional democracy to protect as we conduct these proceedings and as we make decisions in these proceedings. He asks 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.

you that at the end of this exercise, let our Constitution, our constitutional democracy and our constitutional order emerge stronger. Allow me to address this House on the defined standard for impeachment of the Deputy President. In a comparable decision by the Supreme Court of Kenya, the case of Hon. Mike Mbuvi Sonko versus the Clerk, County Assembly of Nairobi and others, the Supreme Court observed as follows: “It must, however, be stressed for the avoidance of doubt that the power of impeachment, removal or recall is not one expected to be in constant or frequent exercise. It is only in the face of credible evidence of extraordinary wrongdoing that the conduct of a state officer will be investigated. Even then, only upon sufficient proof of the allegations that the impeachment, removal or recall would be warranted.” Distinguished Senators, we pose two questions that must constantly linger in your minds as you undertake the assignment before you. Number one, we beseech you to bear in mind the question: is there credible evidence of extraordinary wrongdoing on the part of His Excellency, Hon. Rigathi Gachagua, before you? Number two; is there sufficient proof of the allegations levelled against His Excellency, Rigathi Gachagua? Article 150(1)(b) sets out the grounds for removal of a deputy president from office by impeachment. These grounds are: One, gross violation of the constitution or any other law. We emphasise the drafters’ use of the word “gross”. Serious reasons to believe that the Deputy President has committed a crime under national or international law. Again, we emphasise the word “serious” then “gross misconduct”. Summises, conjecture and street rumours cannot pass master. This conduct must be the conduct of the person, the Deputy President. It is sufficiently notorious for this court to take judicial notice of when the late Nderitu Gachagua whose Will is now referred to here, died. You are told to investigate the conduct of His Excellency Rigathi Gachagua at the time around which his brother, His Excellency Governor Nderitu Gachagua, as he then was, died. It is sufficiently notorious that His Excellency Rigathi Gachagua was not Deputy President of the Republic of Kenya. That is not enough. You will peruse the Motion before you with a view to finding which ground in that Motion is sought to be established by these allegations around what may or may not have happened around the time the late Nderitu Gachagua died. You will find absolutely no ground supported by those allegations. Let me disclose here that it is designed to whip your emotions. It has no other purpose. Looking at your oath of office that I have alluded to, there is no room for your emotions to be whipped as the basis of decision making in any act that you engage into in the discharge of your constitutional mandate and responsibilities. What does our Constitution expect of the Mover of the Motion in proceedings of this nature? Our Constitution expects the Mover of the Motion to make allegations of any or all the grounds set out in Article 150(1)(b) of the Constitution. It begins by submitting that it is true the Mover of this Motion has written down some allegations in Volume 1 of the documents from the National Assembly. Secondly, the Mover of the Motion is thereafter expected to supply credible evidence of an extraordinary wrongdoing and sufficient proof of the allegations against the Deputy President. 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.

Mr. Speaker, Sir, and distinguished Senators, we submit that is where the Mover of this Motion ought to start having problems with this House, when he is called upon to account. It is the submission of His Excellency, Rigathi Gachagua that the Motion before you has fallen short of the threshold set by law by multiple miles. When you examine the material before you, you will discover that it will oscillate between the following categories of stages. One, you will have material before you that is plainly false. Then from falsehood, it will go to the ridiculous ones. I will demonstrate that shortly. There will be ridiculous claims here. Then finally, it will end up into embarrassing claims. Allow me in the few minutes I have, to do a snip preview of some of these claims so that we have an overview of the case that is before you. At paragraph 74(b) of the first volume, which is the Impeachment Motion, you will find an allegation that His Excellency, Rigathi Gachagua, has influenced his family members, allies, associates and proxies to take control of a local corporate society in Mathira, which they are financially haemorrhaging. Number one, no name of any family member is supplied in the allegation or in any of the evidentiary documents before you. No name of any ally is supplied in the Motion or in any of the documents before you. No name of any associate is supplied even a false name; none is supplied in the Motion and in the documents before you. No name of any proxy is supplied in the Motion or in any of the documents before you. The name of the alleged Savings and Credit Cooperatives (SACCO) is not identified. Mr. Speaker, Sir, and distinguished Senators, you can imagine being called to defend yourself on a claim that you have taken over, through your associates, a SACCO that we do know; so now come and defend yourself. I began by saying some of these claims are either ridiculous or embarrassing. Secondly, at paragraph 74 (A) you will be told that His Excellency has connived with cartels in the tea sector to block the Kenya Tea Development Agency (KTDA) from implementing guaranteed minimum returns that would benefit tea farmers. No statement, affidavit or correspondence from any official of the KTDA is before you. No complaint to any agency, no complaint to this Parliament by any official of the KTDA is before you. It is just a claim, which the Mover of this Motion said before the National Assembly. Surprisingly, for those of us who have some residual faith in our institution, he told the National Assembly just believe my word for what it is. When we thought that that was a joke, we got a joke lifted a notch higher. The National Assembly actually just believed his word for what it is. No evidence. Nothing in the five affidavits before you address anything about the KTDA. Let us progress, good people. Paragraph 72 of the Motion before you states that His Excellency has persistently undermined, demeaned and committed insubordination instead of assisting the President. Let us face it, if you accuse somebody of insubordination, the only person who can complain of being insubordinated is the supervisor. No statement or affidavit from the President or witness summons to the President has been sought here to call him to complain that he has been insubordinated. 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.

The Deputy President, when he received this Motion, wrote to the Secretary to the Cabinet, requesting to be supplied by any or all assignments given to him by the President and any that he has not delivered. To date, as we stand here, we have not received a response to that letter. Mr. Speaker, Sir, we shall be told, just believe the Mover of this Motion, the MP for Kibwezi West Constituency, that when he is oscillating between the National Assembly and Kibwezi West to serve his people, he knows better than the supervisor of the Deputy President that the Deputy President has insubordinated his boss. I began by observing they will move from the false through the ridiculous to the embarrassing and these are the claims before you. At paragraph 64, paragraph (a) of the Impeachment Motion, you will be told that His Excellency the Deputy President said that he would present a petition for the removal of Justice Esther Maina from office, which he has not done to date. Mr. Speaker, Sir, my eyes are normally problematic, so I will not know the time allocation.

It is 15 minutes.

Thank you so much, Mr. Speaker, Sir. The claim is that His Excellency publicly said that he would present a Petition for the removal of Justice Esther Maina from office, which he has not done to date. That is the complaint. The evidence before you is that there is a pending complaint by His Excellency the Deputy President before the Judicial Service Commission (JSC). Therefore, the Mover of this Motion first has perjured himself in his affidavit by saying that each of these facts are correct when this fact is false by evidence available. You will find that paragraph 34 of the Motion before you says that His Excellency falsely threatened to file a Petition for removal of Justice Esther Maina. How can the Deputy President be accused of falsely threatening when, in fact, he has filed the complaint? Where is the falsehood when there is a pending complaint? That complaint is before you in the Deputy President's documents for your own perusal. I began by saying they will move from the false through the ridiculous to the embarrassing. At paragraph 78(c), you will be told that His Excellency routinely summons procurement officers in Ministries and State institutions and instructs them to direct procurement of goods and services in a specific manner. No officer from any Ministry will swear an affidavit claiming to have been summoned to award any procurement for any goods or any services in a particular manner. In fact, what you will have before you is actually very ridiculous. You will be told that there was a tender for supply of mosquito nets that was cancelled in May, 2023. Then a local company that was an agent of the supplier was following for the return of its bid bond in July, two months after the cancellation of the tender. How can you influence a tender that was cancelled two months ago? I have told you it will move from the false through the ridiculous to the embarrassing. Now, the more interesting one is at Paragraph 78(A). You will be told that His Excellency bullied Kenya Medical Supplies Agency (KEMSA) officials into awarding a tender for the supply of mosquito nets to Crystal Limited. 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.

Good people, Crystal Limited was not even a bidder for that tender. He pressurized people to award it to somebody who is not even a bidder for that tender. I observed it will move from the false through the ridiculous to the embarrassing. Those of us who understand this Motion for what it is understand why these panel beating manoeuvres are being tried here. The Motion as presented and approved by the National Assembly will remain in our constitutional history as the most embarrassing Motion ever approved by a House of Parliament in the Commonwealth. We respectfully submit. You will be told at paragraph 58 that His Excellency is reasonably suspected to be the principal beneficiary of what are called dubious transactions by Lusona Events Ltd. You will then go to the allegations on Lusona Events Ltd and you will want to see those transactions, how are they terminating to the Deputy President? You will not come across any connection. They will just say a director of this company withdrew some money from his own company, the Deputy President is not a director and none of his family members are directors. That person withdrew money from his company and bought a motor vehicle in his own name. The Mover will say; I am, therefore, drawing a reasonable conclusion that the Deputy President is the beneficiary of this. Good people, the word “reasonable” has meaning known to law. I submit very respectfully that this falls short of the definition of the word reasonable suspicion. I submit it actually gravitates towards unreasonable suspicion. Now let us look at this. You will be told that His Excellency has acquired 40 acres of land in Kakuret, Kamburaini in Nyeri. Evidence before you will show that this is land that the Deputy President, in fact, bought from a current Member of the National Assembly. So, he knows that Member; in 2015, before he even joined State office as an MP. You are told that the purchase of this land in 2015 shows that in the last two years the Deputy President has amassed immense wealth. I began by saying let us be elementarily decent. One of the most frustrating things about preparing for such a hopelessly conceptualized, hopelessly crafted and hopelessly presented case is that you begin doubting yourself because you begin wondering what am I not seeing? Land bought from a sitting Member of the National Assembly in the year 2015, is supposed to be evidence that in the last two years, His Excellency Rigathi Gachagua has amassed immense wealth from the office of the Deputy President to acquire that property. Let us look at paragraph 45(g). You will be told that His Excellency has acquired 80 acres of land in Meru County. No land registration number is provided. Not even an affidavit of a neighbor who says: “I know he has this land. He is my neighbour.” Just an allegation by the Mover of this Motion like that. The Swahili say; “ Ukistaajabu ya Musa, utaona ya Firauni.” This Mover of this Motion stood before the National Assembly and said, “just believe me for this statement as it is.” That was the first joke. The second joke was that the National Assembly actually believed him and approved the Motion. 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.

You will be told in Paragraph 45(h), that His Excellency has acquired a dairy farm in Nyandarua County. Now, I guess we all have a common understanding what a dairy farm is. His Excellency has no dairy farm in Nyandarua County. The Mover of this Motion does not give us any evidence of this dairy farm. You will be told that His Excellency has used the office of the Deputy President to corruptly influence unnecessary and expensive renovation of his official residence in Karen and Mombasa. What will shock you good people is this the contract for the renovation of the official residence of the Deputy President which was signed by the Controller of State House. Unless the Mover of this Motion wants to make a claim that the Deputy President conspired with the State House to have this contract executed. Secondly, it will be known to all of us as Members of Parliament that the money for renovation of this official residence was approved by the National Assembly. Is the National Assembly conceding that it approved money for unnecessary expenditure by Government? How can the National Assembly approve money for renovation of the residence of the Deputy President and then after that money is used for the intended purpose - the renovation of the official residence of the Deputy President - now drag the Deputy President for impeachment for the reason of that renovation? I said it will move through the ridiculous to the embarrassing. You will be told that the Deputy President has a helicopter landing facility at his land in Ruguru-Kiamariga 1223 in Mathira. The Deputy President simply has no helicopter landing pad on that farm, a small parcel of land with Napier grass. Unless the Mover of this Motion can now convince us that new technology has emerged, that Napier grass is the constructing material for landing pads for aircrafts. That is the only way it can make sense. Since it does not make sense, good people, you will agree with me, it moves from the false through the ridiculous to the embarrassing. Now let us deal with it. You will be told the Deputy President has amassed a wealth portfolio amounting to Kshs5.2 billion. Elementarily, we must then look at the particularization. Tell us which one is what plus which one to amount to this Kshs5.2 billion. This figure, the origin, is only known to the Mover of this Motion. There is nothing on the body of the Motion. There is nothing in the documents attached to the Motion. There is nothing in the video clips to be played by the Mover of this Motion that tells us mathematically how he arrived at this figure of Kshs5.2 billion. Then when the charges were read, distinguished Senators, you heard some 22 companies being read one by one. Twenty-two companies! A number of things will surprise you. You will just find a company listed called Spirit Way Limited; nothing in this Motion tells us what wrong has this company done; nothing in the Motion, completely. It is just listed that way it is. Fortisviz Group Limited. nothing in this Motion tells us what wrong has Fortisviz Group Limited done. They are just companies whose names have been listed and we have spent the taxpayers’ money this afternoon listening to these companies’ names being written with nothing in this Motion telling giving us evidence of wrongdoing. 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.

So, what wrong has Dorcas Rigathi Foundation done? What act are you complaining of that company? What omission are you complaining of in respect of that company? Heartland Supplies Limited; you just find a name of a company there. No wrongdoing is alluded to it; no allegation is made against it. They are just companies thrown there. Distinguished Senators, the Romans called their Assembly, which was the equivalent of this Senate, the Patres; it was an advisory council. That name was derived from an old Latin word meaning father. The Senate derives its name from the Latin word Senex, meaning council or old man. All these words are supposed to address the sagacious state of wisdom of the Senate. If this Senate lives true to its historical origin as the Patres; if this Senate lives true to its Latin origins as the Senex, the old man, the wise man, it will see through these lies, ridiculousness and embarrassing statements. If time were to permit, I will take you through other allegations that meet the same test of falsehood, ridiculousness and embarrassment. Fortunately for us, the rules of procedure permit us to cross-examine the Mover of this Motion and the respective witnesses as a way of bringing forth these lies much more clearly. We shall do that when the time presents itself. At the end of it all, we shall beseech you to do two things, to be true to your oath of office as Senators, to be true to your oath of office as Senators, to pore over this evidence, to listen keenly to this evidence and make a decision premised on the evidence as tested here in cross-examination. If you do that, we have no doubt in our mind you will reach the same conclusion that what has been presented before you as a most consequential Motion perhaps in our lifetime is false, ridiculous and embarrassing. I rest the governor's opening statement.

Counsel, that is the Deputy President; it is not the governor.

My apologies, Mr. Speaker, Sir. I have been here multiple times on governors and I think that is what was reigning in my mind. I rest the Deputy President's opening statement. My apologies for that.

Very well. Now, hon. Senators, we will now move to hear the case of the National Assembly. It has three hours to present its case, meaning all the witnesses, evidence in chief, cross-examination will be given two hours. The legal team for the Deputy President, you will have two hours to cross-examine the witnesses as presented by the National Assembly. Clerk, you may now usher in the first witness of the National Assembly.

Mr. Speaker, as we wait for the witness, I plead if it finds favour with you, one of my assistants, Mr. Boniface Mawira, could come to help us 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.

with turning the pages. I reckon that we would move much faster. He should be perhaps in the Gallery.

That is a valid request. You may proceed. Counsel for the National Assembly, where are your witnesses coming from? They are taking too long.

They must be in Room 4, Hon. Speaker. Our first witness is the Hon. Eckomass Mwengi Mutuse, who was the Mover of the Motion.

Are you sure he has not deserted you?

There is always a risk in this type of business, Hon. Speaker, but I am sure he is around.

Counsel, before you proceed, first introduce yourself and the team.

For the record, Hon. Speaker, my name is Muthomi Thiankolu. I will be doing the examination-in-chief on behalf of the National Assembly. I shall be assisted in that enterprise by my learned friend, Mr. Peter Manyonge Wanyama. I will cover Grounds 1, 5, 6, and 7, and my learned friend will lead the witness in respect of the other grounds in the Motion.

May the witness take the Oath.

Your three hours start running from now.

Good afternoon, Sir. Again, for the record, confirm your name and what you do for a living.

Mr. Speaker, Sir, Hon. Senators, my name is Mwingi Mutuse. I am the Member of Parliament (MP) for Kibwezi West Constituency and I was the Mover of the instant Motion that is before your consideration in the National Assembly. I am also an advocate of the High Court of Kenya by profession.

Great. Let us go straight to the Motion due to the constraints of time. Hon. Speaker, the Motion is in Volume 1 of the Assembly's bundle of Documents. Allegation No. 1 runs from pages 3 to 10 of Volume 1. Without much ado, Hon. Mutuse, let us go to Allegation No.1 of your Impeachment Motion. Can you tell the Senate, in very condensed summary, what is the grievance you have raised against His Excellency the Deputy President?

Hon. Speaker, Hon. Senators, Ground 1 allegation against the Deputy President is that he has violated various Articles of the Constitution that we have listed; being 10(2)(a), (b) and (c); 27(4), 73(1)(a) and (2)(b); 75 (1) (c), and 129 (2) of the Constitution and Articles 147(1), as read with Article 131(2)(c) and (d) of the Constitution. Basically, the Deputy President in the last two years has been in various places within the Republic of Kenya publicizing a notion that Kenya is a company that is owned by shareholders and only those who have shares in the company called Kenya, according to him, will benefit in terms of development and service delivery from the Republic. 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.

It is our contention that Kenya is not a company. Kenya is a Republic that is supposed to serve all Kenyans. The particular Articles of the Constitution that we have cited, because of time, also speak to the functions of the Deputy President being to promote national unity and the citizens of Kenya to receive services and development from the Government, including appointments, without discrimination. That is in short.

Let us quickly go through some of those provisions. If you could be shown the preamble to our Constitution, what does the third paragraph say?

Mr. Speaker, Sir, Hon. Senators, the preamble to our Constitution and I read the third paragraph, “proud of our ethnic, cultural, and religious diversity and determined to live in peace and unity as one indivisible sovereign nation.” Underline ethnic, cultural and religious diversity.

We will come to the evidence you have adduced to support this shortly. Are the utterances you complain about consistent with that constitutional provision?

Definitely, not at all.

Let us go quickly to Article 10. What does it say?

Article 10 (1) states- “The national values and principles of governance in this Article bind all state organs, state officers, public officers and all persons whenever any of them –

(a) Applies or interprets this Constitution;

(b) Enacts, applies or interprets any law; or

(c) Makes or implements public policy decisions.”

Hon. Member, someone would say these are just utterances and we surely cannot remove the Deputy President from office because he has a loose tongue or something like that. What is the problem with these utterances in the context of our history as the Republic of Kenya?

Number one, the constitutional context is that they bind all State officers and the Deputy President is a state officer. There are no two ways. You cannot choose the laws to obey and which not to obey. Number two, we have also had a history in our country. All of us would remember that we had clashes in Likoni in 1992 where populations were displaced. We had problems in Molo in every other cycle of election; in election of 1992-1997 and most recently where the country almost torn apart during the post-election violence of 2007 and 2008. There are examples within the region. Rwanda, Burundi and Yugoslavia and Bosnia is still struggling. As we speak today, Congo is fighting. Across the globe, there has been problems in all these countries. They all began from utterances of this nature.

Is it your testimony, therefore, that utterances of the type we are about to see are a threat to the very existence of Kenya as a republic?

Indeed, that is my testimony.

Is our lived history consistent with the submission that those are not utterances that should emanate from the Deputy President of the Republic of Kenya? 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.

Not just the Deputy President of the Republic of Kenya, but not from any citizen of the Republic.

Hon. Mutuse, have you placed any evidence? You said the Deputy President has been doing this for two years. Have you placed any material to prove this allegation?

Yes. We have placed evidence in the form of videos that have been recorded in meetings where the Deputy President has been attending, being Video No.1, 2, 3, 4, 8, and 11, which contain utterances of the Deputy President in that regard.

Mr. Speaker, Sir, I request we play Video No.1 from the National Assembly’s set of videos.

Mr. Speaker, Sir, due to time constraint, what did these utterances mean and what were they understood by any fair minded Kenyan to mean?

The ordinary meaning is that there are Kenyans who are supposed to benefit from the Kenyan Government and there are other Kenyans not supposed to benefit, and the hon. Deputy President will make sure that only those who voted for the present Government benefit from the Government. Those who did not vote will not get any benefit because they are not shareholders.

Are those utterances consistent with the national value in human dignity in Article 10(b)?

No, Mr. Speaker, Sir.

Are they consistent with the value of national unity in Article 10(a)?

Not at all.

Are they consistent with social justice in Article 10(2)(b)?

Not at all.

What about inclusiveness?

They are divisive.

What about equality?

Not at all.

What about non-discrimination?

They are very discriminative?

What about protection of the marginalized?

They do not protect the marginalized. They marginalize them further.

We could go on and on, but are those utterances consistent with any of the Articles you claim on ground one have been violated?

Not at all.

Mr. Speaker, Sir, let us play video No.2. 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.

In the interest of time, I want to play all of them and then put the question. Let us hear Video No. 3.

Let us play Video No. 4, 8 and 11, in that sequence.

There is an element of repetition, let us go to the next video.

Hon. Mutuse, we could play these videos endlessly. Unfortunately, time is not with us. Please confirm that you have presented before the Senate the utterances made by the Deputy President on this theme in Kitui County. Is that correct?

That is correct.

In Nandi, is that correct?

That is correct.

In Kericho, is that correct?

That is correct.

In Kajiado?

That is correct.

Please confirm that it is in the public domain. These utterances have been made in many other places; they were just illustrations.

Indeed, I suspect they have been made even in the counties represented by the Senators seated here.

Have these been isolated aberrations, or has the Deputy President's campaign and mantra been consistent across the Republic?

It has been consistent and as the Deputy President says, ‘unapologetic’.

But you also played the video of the President speaking for us. How does it compare with his utterance and the campaign by his Deputy?

The President is preaching National Unity, and I believe this is a function assigned by the President under Article 131 of the Constitution to be a symbol of national unity. The Deputy President is required to deputise the President in the performance of his functions. Therefore, it is expected that the Deputy President will take the cue. Instead, the Deputy President is contradicting the President. 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.

We have seen these events covered by a major television station. Right?

Indeed.

Does that television, to the best of your knowledge, have national or local coverage?

National and sometimes regional coverage.

Should the Deputy President of the Republic have the wisdom to know his utterances will be conveyed to the country and the world?

Indeed, yes.

We saw him talking about children that belong to the family – although we do not use the language these days, some illegitimate children. Who was he calling children from outside the home or the illegitimate ones?

Looking at the videos in totality, he must have made those who voted for the Kenya Kwanza Government, legitimate children and those who did not vote for Kenya Kwanza, illegitimate children.

We have seen him saying he has no apologies to make. Notwithstanding these utterances, the media house was leaving a bad taste in the mouths of many people. Is that correct or incorrect?

Yes, he is loud and clear that he has no apologies to make for saying Kenya is a company belonging to shareholders for the benefit of the shareholders.

That defiance and the stance that he has no apology to make. Does it depict the deportment of a man or a woman who should be the Deputy President of the Republic of Kenya?

Not at all.

But you heard his counsel say that there must be some extraordinary wrongdoing before we can impeach you for the things you have alleged. To the best of your knowledge, how many vice presidents or deputy presidents has Kenya had since 1963? In your estimate, how many?

11 or thereabout.

Let us say a dozen. Do we have, in our history since 1963, experienced a Deputy President who traverses the country preaching ethnic exclusion?

I do not remember any. The only incident I remember is when Jaramogi disagreed with Kenyatta and did the moral thing, which was to resign from the Government. I also remember an incident. I think it was Vice President Murumbi, who also disagreed with the then President and did the honourable thing, which was to resign from the Government.

Those were the first two Vice Presidents, Daniel Arap Moi was the third. Do you know of any incidence where Daniel Arap Moi was moving around this country as Vice President committing this type of wrongdoing?

Not at all.

How about Mwai Kibaki? 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.

In fact, when he was demoted, he continued working in the Cabinet.

How about Josephat Karanja?

Not at all.

How about George Saitoti?

Even when he was sacked, he continued being loyal to the Government of the day.

How about Musalia Mudavadi?

In his short stint, nothing has been heard about him undermining his boss.

How about Moody Awori?

Not at all.

Kalonzo Musyoka?

Not at all.

When we are told there is nothing extraordinary about this wrongdoing, is that consistent with the live reality of Kenya.

There is everything extraordinary when a country of 46 tribes someone advocates for the servicing of less than two of those communities. Where will the 44 go?

Given the politics of 41 against one in 2007 and the post-election violence, would this allegation be extraordinary wrongdoing?

It is an extraordinary wrongdoing. In fact, the post- election violence that resulted from that particular kind of campaign was extremely dangerous to our social fabric and our economy.

Given the experience of the Molo and Likoni clashes in the 1990s, would this be extraordinary wrongdoing coming from the second senior state officer?

Indeed, also when it is remembered that he was a District Officer in Molo when those clashes were happening.

Given what is going on right now as we speak in Tana River, would conduct like this emanating from none other than the Deputy President be extraordinary misconduct?

I have seen in the news that families are displaced and people have lost property, and if that is not extraordinary, then I do not know what extraordinary means.

Given what this type of campaign achieved in Rwanda, Burundi, Sudan, South Sudan, former Yugoslavia, Nigeria, and the Biafran war, we could count and count until the cows go home. Can anyone be heard in good conscience to say that this is not extraordinary misconduct?

Indeed, this is very extraordinary, requiring impeachment.

Please confirm because we have been pressed for time that the evidence you are relying on this ground applies equally to allegation No.5 of your Motion. 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.

Just a minute to confirm.

What is your complaint in allegation No. 5? Allegation No.5 would be on pages 16 to 17 of volume two.

Mr. Speaker, Sir, hon. Members, our allegation No.5 relates to a gross violation of Article 3(1) of the Constitution and Article 148(5)(a) of the Constitution, specifically the breach of the oath of office and allegiance.

Does the oath of office require the Deputy President to promote national unity or shareholder politics?

The oath of office demands of the Deputy President to promote national unity.

What is your complaint in ground Number six, Sir?

In ground number six---

This is on pages 16 to 17.

Ground number six is about serious reasons to believe the Deputy President has committed a crime under national law pursuant to Article 151(b) (ii) of the Constitution.

What is the specific complaint?

The specific complaint is that there are serious reasons to believe that His Excellency, Rigathi Gachagua, has committed crimes under Section 13(1)(a) and 62 of the National Cohesion and Integration Act.

Can you please read for us those sections of the law?

Section 13 of the National Cohesion and Integration Act provides that it is an offence---

Mr. Speaker, Sir, that section will be in Volume 7 of the National Assembly's documents.

Section 13 of the National Cohesion and Integration Act states that it is an offence for any person to use threatening, abusive, or insulting words or behaviour where the person intends to stir up feelings of ethnic contempt, hatred, hostility, violence or discrimination. The section also makes it an offense to use words or engage in such behaviour when having regard to all the circumstances, ethnic hatred is likely to be stirred up.

Is ethnic hatred likely to be stirred up by this campaign of shareholding?

Obviously.

Is it likely to stir up ethnic contempt?

Obviously.

What does Section 62 say?

Section 62 of the National Cohesion and Integration Act states that- “A person commits an offense when the person makes statements that are intended or are likely to stir up feelings of ethnic contempt, hatred, hostility, violence or discrimination”

Are the utterances by the Deputy President likely to trigger any of those things? 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.

Yes, indeed.

As a matter of fact, Hon. Mutuse, that law on National Cohesion and Integration that you just read, was it not the law Parliament enacted to ensure we never go back to where our country was in 2007/2008 because of utterances like this?

It was pursuant to the post-election violence and the country resolved that we needed a law as a result. Therefore, it is a law that is supposed to ensure that we in office live to promote national unity and not the opposite.

Given that history and why that law exists, we repeat the question. Has the Deputy President committed ordinary or extraordinary wrong doing?

He has under Article 150 of the Constitution in relation to this ground. There are serious reasons to believe that he has committed wrongs against the National Cohesion and Integration Act, and extraordinary in nature. If you allow me, these are not my words. I have been accused of urging the National Assembly to believe me. These are not my words, they are words of the Constitution, under Article 150.

Mr. Speaker, Sir, we are urging if the Senate could consider the evidence, so far, adduced, then that evidence applies to ground one, five and six. So, we are prosecuting them together to save on time. Let us go to allegation number seven, that runs from pages 17 to 31. It was the one you were told runs from falsehoods culminating in the embarrassing and other things. Let us see whether it is actually falsehoods, embarrassing and the other adjectives that were told. I would urge Members to walk with me by holding Volume 2A of the National Assembly's documents. Together with our Volume 6 which I will only mention briefly. Please confirm at page two of Volume 6 between you and the Deputy President aspersions were cast that you are referring to irrelevant material about the estate of the late Nderitu Gachagua. Between you and the Deputy President, who has brought up this issue of the estate? Is it you or him?

In the response by the Deputy President on page two of Volume 6, he brought out the issue of the estate of his late brother in response to the allegations that he has acquired properties worth Kshs5.2 billion within the period that he has been Deputy President.

So, we will come back to that document much later. I am only mentioning it now to clear the air. Whether it is you trying to whip emotions by bringing up this matter or it is the Deputy President attempting, by his own response, to hide behind the shadow of his late brother.

I never mentioned any of my deceased relatives. I have them, but I never mentioned any. The Deputy President is the one who mentioned his deceased relatives.

He is actually the one who has brought this material. Is that true?

Indeed. 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.

Good. We will come to it. Let us go back to your allegation. Ground 7, can you tell the Senate, in summary, we are so pressed for time?

Under the ground number seven, our allegation is that there are serious reasons to believe that His Excellency, Rigathi Gachagua, has committed crimes under Section 45(1), 46, 47(a) (3) and 48(1) of the Anti-Corruption and Economic Crimes Act, as well as Sections 2, 3, 4, and 7 of the Proceeds of Crime and Money Laundering Act. In short, during the short period that I was doing research on this Motion, I have come across properties that are registered in the name of the Deputy President, or in the name of his children, or other proxies, that run cumulatively to a value of about Kshs5.2 billion. There is no clear trace of where the money is to purchase those properties came from. Therefore, under the Anti-Corruption and Economic Crimes Act, qualify to be unexplained assets. Secondly, I have also listed companies that are associated with the Deputy President; 22 of them. These companies when you look at the objects and purposes, they are all the same. It is our theory and evidence that these companies have been used for money laundering. Similarly, I have also listed companies that have been transacting with the office of the Deputy President held by the Deputy President His Excellency Rigathi Gachagua, with tremendous respect. They are being paid from that office and we have laid ground for serious reasons to believe that these companies are actually conduits for corruption and that political responsibility, even when he is not the accounting officer, rests with the highest order of that office. That is the case we are making here. We shall be showing the connection between the properties and His Excellency Rigathi Gachagua. In the case of unexplained assets, it is upon the person to show where they got the money to buy the assets. We have evidence that the assets belong to him.

Let us begin with the companies Hon. Mutuse. You said you have attached Form CR 12 to your Motion.

Indeed, I have attached Form CR 12, being evidence of ownership of those companies.

Would that be the Form CR 12 on pages eight all the way to 32 of volume 2A?

Indeed, yes.

Mr. Speaker, Sir, it is volume 2A, pages eight to 32. It is from page one to 32, right? It is me who is mistaken.

Indeed, yes.

We are stressed for time. Do these documents show in black and white that the majority of these companies, the directors and shareholders, are either the Deputy President, his sons or his spouse?

Yes, they do. Hon. Senators will have the opportunity to look at these CR12 forms here at the House. Many of them are under two weeks old. So, they are very recent. 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.

Let us go to the question of the purchase of---

You can also independently confirm from the e- Citizen portal. It is only Kshs650 to do a company search.

You, you have mentioned Treetops Hotel and Outspan Hotel in paragraph 45A.

Yes, indeed.

Let us confirm whether this is false, ridiculous, or embarrassing. Did the Deputy President issue a public address on the 7th October in which he admitted acquiring these two hotels?

Yes, indeed. That is correct. That it is part of our evidence.

So, with that admission from him, can he be right to say your allegations are false, ridiculous and embarrassing?

That is not expected from the son of Mau Mau.

Let us go to page 33 of your volume 2A.

Mr. Speaker, Sir, we have been patiently waiting and I have been restraining myself---

Kindly pause the time for the National Assembly. Proceed, Counsel.

I have been constraining myself when listening to the proceedings. Counsel is testifying instead of the witness testifying. Secondly, he is asking leading questions in examination-in-chief. Counsel understands the rules of examination.

A case in point? You are very general.

Mr. Speaker, Sir, the HANSARD will bear us witness. The Senate is the custodian of the HANSARD.

Counsel, I am very alert. Even before you take to your feet, I will object to any leading questions. I am very alert to that. Proceed, Counsel.

Much obliged, Mr. Speaker, Sir. Let us go to page 33. What is that document on volume 2A?

On page 33, we have a discharge of charge between Wayne Holdings Limited and Aberdare Safari Lodges Limited drawn by the firm of Dentons Hamilton Harrison & Mathews

On page 34, what is given as the amount of the loan being discharged?

Mr. Speaker, Sir, the loan being discharged is Kshs143,885,042.

Please confirm this loan is being discharged as of 30th October, 2023.

Yes. The loan is being discharged as of 30th October, 2023. The loan was to Aberdare Safari Hotels Limited.

Would that mean this hotel was indebted before the Deputy President acquired it?

It was indebted. 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.

To what amount?

A sum of Kshs143,885,042.

Let us go to page 37. What is that document you have annexed?

Mr. Speaker, Sir, the document I have annexed here is a transfer instrument; transfer to companies and limited liability partnerships. It is a document ordinarily that is used to transfer---

Interest in what?

Interest in property from one party to the next.

Who is acquiring that property according to this document?

The property as at this time belonged to Aberdare Safari Hotels Limited and is being transferred to Crystal Kenya Limited.

Is Crystal Kenya Limited a company linked to the Deputy President?

Yes, indeed, and we have annexed Form CR-12.

In which page?

Form CR-12 is on page 23 of our volume 2A.

Who are given as the directors there?

The directors are one, Keith Ikinu Rigathi---

Who is that?

That is a son to Hon. Rigathi Gachagua. The second director is Kevin Gachagua Rigathi who is also his son.

Now, let us go back to page 37. Has the Deputy President in his response explained where he got more than half a billion shillings, and to be precise, Kshs535 million to acquire this hotel?

To begin with, the consideration for this transfer was Kshs535 million and this needs to be added to the loan of Kshs143 million cumulatively, so that you get the value in terms of what was the purchase.

Yes.

Mr. Speaker, Sir, in his response and I have seen it, the Deputy President alludes that he got a loan of Kshs600 million. He used to run this company called Crystal Kenya Limited, but when he became the Deputy President, he gave it to his children to run it. He goes further to say that he got a loan of Kshs600 million from the Credit Bank Limited of Kenya.

Has he placed before the Senate evidence of the disbursement of any such loan?

I have seen a letter of offer for that loan, but I have not seen any evidence of disbursement nor any charge in respect of that loan.

Is a letter of offer for loan evidence that a loan has actually been given?

A letter of offer is just that, an offer. 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.

That letter of offer is annexed; it says that as security for the supposed loan, there will be director's guarantees. Has he annexed those director's guarantees?

To the best of my recollection, I have not seen them.

It says that the loan will be secured by personal guarantees. Has he also annexed those personal guarantees?

I have not seen them.

Has he annexed any security known in the banking world for acquiring a loan of this amount?

What I have seen in the letter of offer is in terms of the lien and set-off at page 132 of 534; That lien and set-off of a fixed deposit---

Please say the volume you are referring to and the page, so that the Senate can walk with you---

Counsel, the Senators would wish to know where the letter of offer is contained. Which volume and page?

Mr. Speaker, Sir, the letter of offer---

Mr. Speaker, Sir, it is on volume six---

Volume six, starting from page 98.

Kindly take us through that letter of offer.

Mr. Speaker, Sir, there is a letter of offer, meaning there was an application for a loan. This is to the directors of Crystal Kenya Limited. Crystal Kenya Limited is a company that is acquiring Aberdare Safari Lodges and the loan is in respect of an amount of Kshs600 million. In the clause for lien and set-off, I have seen that a lien and set-off over fixed deposits, this is on page 99, in respect of INO, Crystal Kenya Limited, for an aggregate amount of Kshs300 million to be obtained. Interest accrued shall be credited to your deposit settlement account.

Let us stick to that one for now. From elementary banking knowledge, what do we conclude from this issue of the Kshs300 million?

My understanding is that the account held at the bank had Kshs300 million in cash and that amount was going to be part of the security for the loan.

So, it means the Deputy President or his sons already had cash in that account amounting to Kshs300 million?

Yes, Mr. Speaker, Sir, and it is also an asset that we are counting in cumulating the Kshs5.2 billion.

Now, let us count that Kshs300 million, Kshs535 million and the Kshs143 million that had been paid to pave away for this transaction.

Indeed, yes.

In estimate, that would be like how much money?

The Kshs535 plus Kshs300 equals to Kshs 835 million plus the Kshs143 million comes roughly to a billion shillings in respect of one transaction. 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.

Roughly a billion shillings for just one property. Now, if the Deputy President were to save all his net salary for 10 years, would he have savings of a billion shillings to acquire this hotel?

Not at all. From the known legitimate source of income, which is his salary as Deputy President, it would not be possible for him to acquire a billion shillings within a period of two years. This is because his salary as gazetted by the Salaries and Renumeration Commission (SRC) is roughly around Kshs1.2 million. After taxation, we get an aggregate of a million shillings.

In reference to these three figures, whether it is the Kshs143 million, Kshs300 million or Kshs535 million, has the Deputy President in his response, offered any legitimate explanation of how he or his young sons came up to this incredible fortune of money?

Nowhere in the response, other than the letter of offer, that is in itself, not evidence of acquiring a loan.

At page 39 who are shown as the parties to this transaction for Aberdare Safari Lodges Limited?

At Page 39 of volume 2(A), the parties to this transaction, for Crystal Kenya Limited are Kevin Gachagua Rigathi and Keith Ikinu Rigathi, while for Aberdare Safari Hotels, there is Robert Gathenji and Kenneth Waiboshi.

Are those two gentlemen you mentioned first related to the Deputy President?

Indeed, they are his children.

As a matter of fact, Hon. Mutuse, and we will do it in the closing statement, does our Public Officer Ethics Act or the Leadership and Integrity Act faced with facts like this, permit the Deputy President to hide behind his sons?

Not at all.

Is he allowed to hide behind any of his relatives?

Not at all.

What about his spouse?

Not at all.

So even if the Senate were to accept for argument's sake that this company is run by the sons, would that, based on our Public Officer Ethics Act or the Leadership and Integrity Act, be a valid answer to this unexplained wealth?

Section 35 of the Leadership and Integrity Act---

Which volume are you reading, please?

I am reading from volume seven in our bundle of documents. On page 34- Acting through Others A state officer contravenes the court if the officer- (a) causes anything to be done through another person that would constitute a contravention of the court if done by the state officer (b) or allows or directs a person under their supervision or control to do anything that is in contravention of the court. 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.

Mr. Speaker, Sir, acting through others is what previously I have called ‘it was not me.’ Let us go to page 79 of volume 2(A).

We are there.

This is documentation for that same property that the Deputy President admits he acquired, right?

Yes, through Aberdare Safari Lodges Limited. For contextualization, Aberdare Safari Lodges Limited, owned two hotels, the Treetops Hotel and Outspan. The Outspan Hotel is the one that we have demonstrated how it was purchased. Treetops is a property developed by the Kenya Wildlife Service. However, it was under the same management of Aberdare Safari Lodges Limited, so they were acquired together.

Let us pause at - “it is owned by the Kenya Wildlife Service.” Is the Kenya Wildlife Service a public or a private entity?

It is a public entity, funded by the taxpayers.

Under Chapter Six laws, that is the Public Officer Ethics Act, the Leadership and Integrity Act, if you wish, you can even draw the Public Procurement and Disposal Act, is it consistent with all those laws for the Deputy President of the Republic to acquire without competitive bidding, an interest in a resource owned by the Kenya Wildlife Service (KWS)?

It is not. In fact, the Deputy President is on record in these proceedings as having said that he advised his family not to transact with the Government. However, we will demonstrate that he actually transacted with KWS, yet KWS is a public entity.

If this hotel were to be leased or sold, would there be a requirement for open, competitive and transparent bidding?

We have reasonable grounds to believe that the Deputy President has breached Section 45 of the Anti-Corruption and Economic Crimes Act. I will read page 23 of volume seven. It states as follows- “Protection of Public Property and Revenue A person is guilty of an offence if the person fraudulently or otherwise unlawfully- (a) Acquires public property or public service or benefits (b) Mortgages, charges or disposes of any public property (c) Damages public property, including causing a computer or another electronic machinery to perform any function that directly or indirectly results in a loss or adversely affects any public revenue or service. (d) or fails to pay any taxes or any fees, levies, charges payable to any public body or effects or obtains an exemption, remission, reduction or abatement from payment of any such taxes, levies and fees.” Section 46- “Abuse of Office A person who uses his office to improperly confer a benefit on himself or anyone else is guilty of an offence.” 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.

Let us go to page 81 of volume 2(A), Sir. It is still about Treetops Hotel.

I am there.

Can you read for us the last sentence of the second paragraph?

This is a letter from the Kenya Wildlife Service to Mr. Amos Kisilu of Kisilu and Wandati Company Advocates.

When is it dated?

The letter is dated 5th of June, 2023.

Was His Excellency, the Hon. Rigathi Gachagua, the Deputy President of Kenya on that date?

Yes.

Whom is it addressed to?

It is addressed to Kisilu Wandati and Company Advocates.

In the Deputy President's response, is that law firm indicated as one of the law firm’s uses?

Yes, indeed.

Good. Now, read for us the second paragraph of that letter, beginning with the word, ‘However’.

It reads as follows: “However, the tenant is in rental areas of Kshs35,481,548 and the Lodge has not been operational since 2019, which has resulted in deterioration of the same, in breach of the lease agreement.”

So, we are being told a number of things about this hotel. One, it has not been in operation for four years, is that correct?

Indeed.

As a result, it has accumulated rent arrears, is this correct or incorrect?

Yes, and deteriorated, which in effect means it requires renovation money.

Now, let us go to page 80, where the Deputy President develops interest in the hotel.

I am there.

Can you read the opening line of that, the first paragraph of that letter?

Mr. Speaker, Sir, and hon. Senators, this is a letter from Kisilu Wandati and Company Advocates to the Director General of the Kenya Wildlife Service. The opening sentence reads as follows- “We act for a party (our client), who is interested in taking on an assignment of lease of the Treetops Hotel Lodge, as defined in the lease agreement dated 31st December, 1998 between yourselves and the Aberdare Safari Lodges Limited, the Leasee. 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.

Please confirm this is a letter by the Deputy President's lawyers.

This indeed is a letter by the Deputy President's lawyers, but funny enough, against all professional knowledge in terms of how you write letters, they do not disclose their client. They just say, they act for a party.

Does that letter disclose the identity of the client anywhere?

No, it does not. Yet it is a requirement that you must disclose the client as you move ahead.

Is that how lawyers usually write letters in honest, genuine transactions?

Not at all. I am one of them, so I know.

Let us go to page 83 of Volume 2(A). What is written there?

On page 83 is a letter to Dr. Kanga, Director General of Acting, Kenya Wildlife Service from Aberdare Safari Lodges Limited. It is about Treetops Lodge debt and lease.

Please hold 83 together with 81. In 81, we are told the hotel has not been in operation for years because it is in rent arrears, right?

Yes, rent arrears of upwards of Kshs35 million.

That is on which date?

This is on 5th June, 2023.

The letter on page 83 is on what date?

It is 7th July, 2023, a month later.

Roughly, how many days in between?

Roughly a month, 30 days or so.

What does this letter say?

The letter says:- “I refer to Treetops rent arrears debt of Kshs35,481,548.14 and I am pleased to inform you that the Aberdare Safari Hotels Limited as today paid via Real Time Gross Settlement (RTGS

Hon. Mutuse, what do you have to tell the Senate of the fact a company that was in arrears for four years of Kshs35 million is in distress, not in operation, the Deputy President shows interest and is suddenly able to pay these arrears of Kshs35 million?

The Deputy President must be very magical. You have not operated for over four years, you are in debt that you have not been able to service four years, but you have just interacted with him for a month and you pay your debt overnight.

When you see this, is it consistent with the narrative that your allegations are false, ridiculous and embarrassing? 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.

Not at all. Indeed, our allegations are backed up by concrete evidence as we have demonstrated.

What is the document at page 85 of Volume 2A?

On page 85 is a letter by KWS to our one Ken Waibochi, the Managing Director of Aberdare Safari Lodges and it is acknowledgement of funds.

How much money?

The letter in paragraph 2 reads as follows: “We acknowledge receipt of Kshs34,481---

Has the Deputy President in his response explained the mysterious availability of this Kshs35 million when he comes to the picture?

I have not seen anywhere where he explains where this money came from.

What is that document on page 87? Volume 2A, Mr Speaker, Sir.

This is novation and assignment of lease agreement and addendum to lease dated 31st December, 1998 and 27th July, 2023 respectively, between KWS, Aberdare Safari Lodges Limited and Crystal Kenya Limited, the company of interest.

Does this confirm just like the deputy admitting that he acquired Treetops Hotel?

It confirms and has not been contested.

Mr. Mutuse, is your allegation about Treetops, false, ridiculous and embarrassing?

Come again.

Is the evidence you have just taken the Senate through about Treetops Hotel consistent with the narrative of a Mover of Motion who makes ridiculous, false and embarrassing claims?

Not at all. It demonstrates that our allegations are not malicious.

Let us go to his response in Volume 6. It should be page 8 if I am not mistaken, Mr Speaker, Sir.

Yes, there we are.

Okay, is page 9.

Yes.

At the top of page 9, what does the Deputy President in his response to the National Assembly tell it?

He says in respect to Crystal Kenya Limited: “This company was incorporated in 2009, way before I became Deputy President.”

Let us pause there. Is that a valid response to your Motion; the date when the company was incorporated?

I am interested in what the company did when Mr. Rigathi Gachagua did as Deputy President and not when the company was incorporated.

Okay, read for us the next line. 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.

It says: “I transferred the company to my sons when I became Deputy President.”

Is that a valid answer given the things we have seen about Treetops and Outspan?

It confirms that, indeed, the sons are acting on his behalf.

Read the next line, please.

It says: “It acquired Outspan Hotel and Treetops Hotel following financing by a local bank. I also gave the company a personal loan from funds, which were returned to me by the Asset Recovery Agency. I wish to clarify that Treetops Hotel was not bought, but leased from KWS. The lease was assigned to Crystal Kenya Limited by a private company, Aberdare Safari Hotels Limited. I have annexed the facility letter dated 24th October as well as the company resolution to borrow Kshs600 million and marked as annexed to RG 14 and annexed to RG 15, respectively.

Let us go to page 44. This relates to the property called Ruguru-Kiamariga 1223. This is in Volume 2A, page 44. Please, confirm from the Deputy President's response whether he has admitted acquiring this property.

Yes, he admits acquiring the property, but goes ahead to make some justifications.

The justification he makes is to what effect?

Is that the acreage which is different and that he bought it for Kshs3.5 million and not Kshs5 million as alleged?

Now, let us go to that page 44. What is that document?

This is a document transfer by a personal representative to a person on intestate. Basically---

Who is given that transfer? Who is making it?

A certain Naftali Guandaru Gathogo.

Can you read the opening line of that document?

Public trustee of the Republic of Kenya of P.O. Box 49672 Nairobi as personal representatives of Naftali Guandaru Gathogo deceased hereby transferred to Hannah Gathongo Mugo, absolutely.

Is the public trustee a public officer?

The public trustee is a public office.

Under what circumstances to the best of your knowledge does the public trustee obtain letters of administration of an estate, in this case the estate of the deceased Naftali Guandaru Gathogo? In terms of the law of succession, the public trustee only steps in where there are no beneficiaries of a deceased person's estate. The person to whom the trustee is transferring is their picture given there?

Yes, it is given and I will invite hon. Senators to look at it.

What observation do you want them to make about it? 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.

Well, this is a photograph of--- I do not want to say dishevelled, old lady who signs by appending her thumb signifying she was probably not even aware of the transaction.

Has she signed or affixed a thumbprint?

A thumbprint.

On the face of it, does that look like a privileged or vulnerable and marginalised Kenyan?

Very vulnerable.

Mr Speaker, Sir, kindly allow me again to bring to the attention of the Assembly that the advocate is leading his lay witness. He has put a question. Does that in your own imagination, look like a vulnerable witness?

Objection sustained. Counsel for National Assembly, stop leading the witness.

I am much guided, Mr Speaker, Sir. We will proceed. What page are we?

We are on page 44.

Did the Deputy President, in his response, disclose that this property initially belonged to a deceased person?

No.

Did he in his response disclose that this property was initially vested on the public trustee?

No, he did not.

Let us go to his response in paragraph 1.4.2, which is in Volume 6.

Page?

Page 4 of Volume 6. Can you read paragraph 1.4.2 of the Deputy President's response?

It says: “I purchased the land in the year 2023 for Kshs3.5 million for my farm proceeds. Some of you are aware that I have a dairy farm with close to 200 cows.”

Now, let us see who is saying things that are embarrassing, false and ridiculous. What is the price he has said he acquired it for on that page?

At a cost of Kshs3.5 million.

Let us go to the agreement he has attached to show how he purchased this property. It is on page 63 of the same volume. Clause 3, what is given as the purchase price?

The purchase price is Kshs5 million only, to be paid as follows.

Is that consistent?

This is volume six.

Mr. Speaker, Sir, we are holding Volume 6, pages 4 and 63. No, it is page 4 of 534 and page 96 of 534. The problem is that there are two sets 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.

of pagination, so the one we will refer to is the one that is of 534. We are talking of page 4 of 534. You hold that together with page 96 of 534. My apologies, Mr. Speaker, Sir.

In other words, go to page four and page 96.

Page 96 of Volume 6.

Yes, we are there.

We will shortly take you to the paragraphs. Mr. Speaker, Sir, you know I am under a lot of pressure because of time. So, are we all there, hon. Senators? Good. Can you read again for the Senate on page 4 of 534 what the Deputy President says was the purchase price for this property?

This is land Parcel No.Ruguru Kiamariga, 1223 in Mathira East Constituency. That is on Page 3. On page 4, the Deputy President says: “I purchased the land in 2023 for Kshs 3.5 million for my farm proceeds.”

Let us pause it there. He bought it for Kshs3.5 million. Let us go to the document he has annexed to prove that he acquired this property for Kshs3.5 million. It is on page 96 of 534.

Indeed, this is an agreement for the sale of the whole of LR No. Ruguru Kiamariga, 1223, measuring approximately 2.5 acres. Under Clause 3, the purchase price is Kshs5 million to be paid as follows.

Given these inconsistencies, Sir, is it fair for the Deputy President to lie in his own document and accuse you of presenting material that is false, ridiculous and embarrassing?

It is not fair, especially when one of our allegations against the Deputy President is that he consistently misleads the public.

Back to Page 4 of 534, he says that he bought it in the year 2023. Was that during his tenure as Deputy President?

Indeed.

He says he has a dairy farm there with 200 cows.

Indeed, he says so.

In his presser on 7th October 2024, what did he tell the country was the source of these 200 cows?

If I remember correctly, in the televised address by the Deputy President on that fateful night, he did say that the Kalenjin people of the Rift Valley have gifted him the cows that he keeps in his farm.

Can you now read for us Article 76 (1) of the Constitution on what it says about gifts given to public officers?

Article 76 (1), Financial Property of State Officers, it says: “A gift or donation to a state officer on a public or official occasion is a gift or donation to the Republic and shall be delivered to the State unless exempted under an Act of Parliament.”

Has the Deputy President presented any evidence that he surrendered these gifts to the State?

He says that he has kept them on his farm. 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.

Would that not be an admission by his public statement of violating Chapter Six?

Indeed, it is an admission and should be treated as such.

Let us go to the land in Meru. Have you placed any evidence to prove this allegation?

I have placed evidence to prove that the Deputy President indeed acquired land in Meru and to the best of my recollection, he has also admitted in his response to having bought land in Meru.

I now want you to watch Volume 8 against the Deputy President's response. Let us go to first of all Volume 6, which is the Deputy President's response. What does he say about the Olive Garden Hotel? In summary, it is Clause 1.1.1, all the way ---

For Clarity Counsel, we leave the issue of Meru, we will come to it later.

We will come to it later. Do not worry. Let us deal with Olive Gardens Hotel for now in Volume 6, which is the Deputy President's response.

We made an allegation that the Deputy President had bought Olive Gardens Hotel through proxies.

Volume six, page?

Volume six, page 2 of 534.

Page 2?

Yes, Page two of 534.

Mr. Speaker, Sir, and Hon. Senators, in my Motion I made allegations that the Deputy President has bought the Olive Gardens Hotel initially owned by his late brother. In response, the Deputy President said as follows – “The allegation that I own Olive Gardens Hotel is false. The truth is that Olive Gardens Hotel used to belong to my deceased brother, the late Hon. James Nderitu Gachagua, and therefore, has never been my property. This is information that most of you may be aware of as it is in the public domain. Upon his demise, my late brother left a Will in his recognition that I am an honest man.”

We can leave it there. And ‘honest man’ is written in bold, right?

It says: “He appointed me as one of the executors of his estate.”

Now, is the Deputy President’s response about Olive Gardens Hotel, which runs from page 2 to 3, consistent with the Affidavit in the National Assembly's Volume 8 by Peterson Njomo Muchira?

Maybe so that we can point Members to Volume 8, we have the Affidavit of Mr. Peterson Njomo Muchira.

Tell us in summary because we are so pressed for time.

Peterson Njomo Muchira says: 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.

“I have personal knowledge of one of the issues raised in the Special Motion, for the removal from office by impeachment, of Mr. Rigathi Gachagua, the Deputy President. I have personal knowledge of the facts relating to the sale of Olive Gardens Hotel, which initially formed part of the estate of the late Nderitu Gachagua. Given the matters settled in the preceding paragraph, I am competent to swear this affidavit. I decided to swear this affidavit after my attention was drawn to contradictions between the contents of Part 1.1 on pages 1-2 of the response that His Excellency Rigathi Gachagua filed at the National Assembly on 8th October, 2024 in opposition to the Special Motion for his removal; Remarks made by Hon. Mwengi Mutuse when prosecuting the Motion in the National Assembly, and remarks made by Hon. Kimani Ichung’wah at the National Assembly. Remarks made by Members of the Assembly ---”

Let us go to the next paragraph in the interest of time.

I wish to clarify and state as follows – “I am a shareholder and director of TM Civil Engineering Limited, the company referred to in the agreement annexed on pages 10 to 34 of the Deputy President's response to the Motion. On 31st March, 2023, the Deputy President approached and convinced me to purchase the Olive Gardens Hotel, which was at the time part of the estate of the late Nderitu Gachagua”.

Let us go to (d).

In (d) he avers that in summary ---

Now, let us go to (c).

Now at (c), he says: “The Deputy President persuaded me to enter into an informal secret arrangement regarding the transaction embodied in the agreement annexed in pages 10 to 34 of his response to the Impeachment Motion. In summary, the terms of the secret agreement were that– (i) the Deputy President would buy the hotel from me by refunding the purchase price of Kshs412 million set out in the agreement annexed in pages 10 to 34 of his response; (ii) the Deputy President would instruct and pay a contractor to renovate the hotel after completion of the transaction embodied in the agreement; (iii) to protect the Deputy President’s undisclosed interest in the hotel, I will appoint Miss Julianne Jahenda as a signatory or agent for the hotel’s account at the Co- operative Bank of Kenya; and, (iv) to further protect the Deputy President’s undisclosed interest, Miss Juliane Jahenda will run the hotel.

Is Miss Julianne Jahenda the same person mentioned in Volume 8A on page 1 of 19?

Yes. This is a letter from the Public Service Commission.

So, does that mean we have two sources, one being Njomo Muchira?

Mr. Speaker, Sir, we are looking at Volume 8A, page 1 of 19. The names are there. We have the first, second and the third one is Miss Makaa 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.

Julianne Jahenda, who is the Deputy Director in charge of co-ordination in the Office of the Deputy President, working on a local contract.

Who is the author of this document?

The author of this document is the Public Service Commission.

Is this document consistent with what Johnson Muchira said in his affidavit about Julianne Jahenda?

It shows that Julianne Jahenda is a staff and a close associate of the Deputy President. She is the same person who was seconded to manage his interests in the Olive Gardens Hotel.

Is the acquisition of this hotel through a secret arrangement from the estate of his brother consistent with “an honest man” as written in bold font in his response?

It is, indeed, consistent with our allegation that His Excellency the Deputy President raided the estate of his late brother and acquired properties directly and through proxies.

Lastly, from me, so that Mr. Wanyama wraps up, let us go to the Vipingo property that also belonged to his brother.

Mr. Speaker, Sir, for Senators to note, this is another Kshs412 million in terms of purchase and renovations. Those are extra millions of money, but there is no disclosure as to where the money was coming from.

Now, let us go to Vipingo Beach Resort, which again the Deputy President wants to hide under the shadow of his late brother. Who are given on page 18 of Volume 2A as the directors of Vipingo Beach Resort Limited? That is contained in Volume 2A, page 18 of 123.

On page 18 of Volume 2A, we have annexed form CR12, dated 27th September, 2024, for Vipingo Beach Resort Limited. The Directors are Keith Ikinu Rigathi and Kevin Gachagua Rigathi. That was the estate of deceased James Nderitu Gachagua.

Let us begin with Kevin, who is a son of the Deputy President. Was he an executor of the will that the Deputy President has annexed to his response?

No. The Will was to be executed by the Deputy President, Hon. Rigathi Gachagua, advocate Njoroge Rugeru and Mr. Maina. The children of the Deputy President were not executors of the estate. Therefore, cannot be in the directorship of this company by virtue of the Will of the late Nderitu Gachagua because they were not named as executors of his estate.

So, is this document on its face consistent with his defence that this hotel belongs to his late brother?

It flies in the face.

Let us see whether he actually acquired it. Let us go to Volume 4, page 107 of 484.

I am there.

What is that document, Sir? 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.

This is a joint will executors’ report on the status of the estate as at 27th February, 2024. This is the estate of the late Nderitu Gachagua.

What does it tell us about Kuruwitu Home Resort in (iii) on that page?

The broad headline is sale of estates assets. It lists Queensgate, Olive Gardens Hotel and Kuruwitu Home Resort. It states as follows: “The resort was sold to Kuruwitu Properties Limited for Kshs250---

What volume and page is that?

Mr. Speaker, Sir, it is Volume 4, page 107 of 484.

Can we continue?

Yes, proceed.

Kuruwitu Home Resort was sold to Kuruwitu Properties Limited for Kshs250 million only.

Let us stop there. Is Kuruwitu Properties Limited to which this hotel or resort was sold a company linked to the Deputy President?

Indeed, and we have annexed in our Volume 2A. If the hon. Speaker and Senators can look at Volume 2A of our exhibits, that is on page 8. We have annexed form CR12 in respect of Kuruwitu Properties Limited.

Who are shown as the directors there?

The directors are Vipingo Beach Resort Limited, which we have demonstrated that is owned by Hon. Rigathi Gachagua’s children.

Back to Volume 4, page 111 of 484. Can you read the sentence that begins with “for instance” at the top?

This is still the joint will executors’ report. I will read what is at the top on page 111 which states as follows: “For instance, the sale of Kuruwitu Beach Resort cottages and Olive Gardens Hotel was done after beneficiaries were apprised in the meeting of 24th June, 2023, cited herein before. Significantly, the beneficiaries themselves in their meetings with one of the executors approved the sale Kuruwitu Beach Resort to one of them who is also an executor---”

Who is the executor and beneficiary being referred to here?

The only executor and beneficiary of the late Nderitu Gachagua’s estate as named in the Will and the joint will executors’ report is one Hon. Rigathi Gachagua.

Where is this property located, Hon. Mutuse?

Vipingo Beach Resort should be somewhere in the coast.

Back to page 107 of Volume 4. In his response, has the Deputy President explained where he got the sum of Kshs250 million to purchase this property?

In fact, he denies buying the property.

Mr. Speaker, Sir, I will cede the Floor to my learned friend, Mr. Wanyama, to prosecute the remaining grounds of the Motion. 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.

Mr. Speaker, Sir, with your permission, I will proceed from where my colleague, Dr. Muthomi, has left. Hon. Mutuse, can you go to Ground No.2 of your Motion?

We will be there shortly.

That is on Page 10 of Volume 1.

Here we are.

Yes, what is the nature of this ground? What are you complaining about?

We are complaining that the Deputy President has on numerous occasions violated Article 147(1) as read together with Article 152(1) of the Constitution of Kenya. In particular, Article 147(1) provides that the Deputy President shall be the principal assistant of the President and shall deputize the President in the execution of the President's functions, while Article 152 (1) of the Constitution states that the Deputy President is a member of the Cabinet. In particular, through Cabinet Communique, as you are aware, after every Cabinet meeting, there is normally a press release that is released. We were aware of a decision of the Cabinet of 30th April, 2024, where it passed a resolution to evacuate members of the public for their own safety from the 30-metre riparian zone of the Nairobi River. When that decision was made, insofar as I understand processing of business in the Cabinet, the Deputy President sat in Cabinet. He is one who chairs Cabinet sub- committees, which process business before going to Cabinet. Therefore, to my own understanding, he was fully involved in the making of that decision. However---

Just to cut you short because of time, the allegation is that the Deputy President has been undermining the President.

Yes.

Do you have evidence in your Motion that supports this allegation?

Yes, I have evidence.

Which evidence is this?

The evidence is in respect of the Cabinet resolution regarding the evacuation of the settlers around the riparian area. Our evidence is contained in the affidavit of Ms. Mercy Wanjau.

Where is this affidavit of Ms. Mercy Wanjau?

The affidavit of Ms. Mercy Wanjau is to be found on Page 78 to 80 of Volume 1.

Has the Deputy President admitted these allegations?

Yes, the Deputy President has admitted the allegation to say there was a Cabinet resolution, but he went against it.

Where is the admission by the Deputy President contained for purpose of the answer?

If you look at paragraphs 10.1.1 and 10.1.3 of the Deputy President's response---

Which volume and page? 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.

Volume 6, page 19 of 534. Paragraph 10.1.1, he says as follows- “The Office of the Deputy President has undertaken extensive engagement with all parties in regard to the Cabinet decision on eviction, which I fully support, including the Nairobi River, which is an entity under the Office of the Deputy President (ODP)---”

Okay, we can stop there. In your opinion, as the Mover of the Motion, can the Government of Kenya function if the Deputy President and the President are not reading from the same page?

It will be very difficult for the Government to function and deliver effectively to the people of Kenya when the two highest office holders are reading from different scripts, especially when the Deputy President, for political expedience, would disown decisions of the Cabinet in a meeting that he sat through to make a decision.

Thank you very much. Have you annexed any videos to prove this allegation?

Yes, indeed.

Video number?

We have annexed Video No.10.

What is Video No.10 all about?

Maybe they can play it for honourable Senators to see for themselves.

Can you play video No.10 briefly, Mr. Speaker, Sir.

Mr. Speaker, Sir, because of time, we are requesting you play at minute 1.25.

Mr. Speaker, Sir, we can stop there because of time. The video has been submitted as part of the evidence from the National Assembly. Hon. Mutuse, let us go to Ground No.3 very quickly. What is it all about? What is your complaint in the Senate in Ground No.3?

Our complaint to the Senate is that the Deputy President has undermined devolution.

Why do you say so, briefly?

We say so because there was a lawful decision by the Nairobi City County.

Which is this lawful decision? You can be specific.

The Nairobi City County made a resolution to relocate traders from the Central Business District (CBD) to Kangundo Road. The Deputy President, through evidence that we have---

Is that decision to relocate traders a county government function? 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.

Yes and because the Senate is a House that is created under Article 96 to protect the interests of counties would take notice that markets, under Schedule 4, is an exclusive function of counties.

Have you submitted any video evidence to support this allegation that the Deputy President has undermined the devolved government system, especially the County Government of Nairobi City?

Yes, Video No.12 and 13, where Members of the Senate shortly, will see that the Deputy President went to Wakulima Market and incited members of the public not to obey lawful directives of the Nairobi City County. We have also, as part of our evidence, annexed the sworn affidavit of Hon. Johnson Sakaja, the Governor of Nairobi City County, with averments to that effect. This is on page 81 to 85 of our Volume 1.

Okay. The video is part of the evidence and record. Why do you complain about this in the Senate?

The Senators want to see and hear the video.

Can we play Video No. 12?

Hon. Mutuse, is that act by the Deputy President impeachable?

It is impeachable in the sense that two levels of the government have been assigned their roles and functions under the Fourth Schedule of the Constitution. The Constitution under Article 6 requires the two levels of the government, much as they are interdependent, also respect their functional independence. If a county government makes a decision, it is upon them to implement that decision. Much as Nairobi is the cosmopolitan capital city of Kenya when the Deputy President went there, he addressed Kenyans in his native language.

Is it compatible with the status of the Deputy President to address these core issues at a market place like this?

It is not consistent. The expectation was that through the inter-governmental relations framework that is already established in law, there would have been a formula to deal with that issue outside the rally.

Which is this framework for inter-governmental relations you are talking about?

We have the Intergovernmental Relations Act and it would be expected the Deputy President being the Chair of the Intergovernmental Relations Committee and also the Intergovernmental Budget and Economic Council (IBEC); he would have exercised his responsibility under the law and those responsibilities to call a meeting with the City County of Nairobi to deliberate on those issues, and if indeed there were complaints from the citizens of Nairobi in a manner that is consistent with the formal running of a government.

Mr. Speaker, Sir, due to time constraints, we can move to Allegation No. 4. Explain briefly what it is all about to the hon. Senators. 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.

Mr. Speaker, Sir, and hon. Senators, is gross violation of Article 161 of the Constitution; specifically undermining the institutional and independence of the judges.

Hon. Mutuse, what do you understand by the word ‘gross’. You are using it in a context and it is important you explain briefly.

My understanding of gross violation of the Constitution, I do not whether I will be speaking in my knowledge as a lawyer.

Just give your opinion on what is gross. It goes into the HANSARD.

Gross violation of the Constitution, the best would be found in the Wambora decision, which defined what gross violation of the Constitution means. It said it is the violation of Article 10, 1 and several articles of the Constitution. I do not have that particular citation, but in my mind, it is paragraph 46 of that decision.

Let us go back to Ground No.4. What is it you are complaining about on this ground?

We are complaining that the Deputy President did threaten in a manner that displayed personal vendetta against the person of Esther Maina, a Judge of the High Court of Kenya. The reason for threatening her with filing a petition for her removal from office was in relation to a decision that she made in a case involving the Deputy President by finding that assets to the tune of cash Kshs202 million held in his companies’ accounts were proceeds of corruption and money laundering. For making that decision, the Deputy President against the provisions of Article 161 threatened Justice Maina with corruption and removal from office.

Point out this Justice Maina’s decision you are talking about to the hon. Senators.

Mr. Speaker, Sir, in our Volume 2A on page 60 to 77, we have annexed the judgement of the hon. Judge, Esther Maina, where many of the companies we have stated in the other allegations are listed here as companies are conduits of corruption and money laundering.

Which companies are these? You can name a few of them, so that we are more specific for the HANSARD.

Mr. Speaker, Sir, we have talked about Crystal Kenya. It is mentioned in the judgment on page 64. There is Wamunyoro Investments and it is mentioned here several times.

What was the conclusion by the Judge in that judgement?

On page 77 of 123 in our Volume 2A, the Judge said that in the upshot the motion is granted in terms of prayers 2, that a declaration is hereby issued that the following funds are proceeds of crime and, therefore, liable for forfeiture to the State. They are listed there, Kshs165 million held in a certain account at Rafiki Finance Bank, Kshs35 million in the name of Rigathi Gachagua. Kshs773,000.

How much in total did the Judge find to be the money that Nderitu Gachagua at the time had through proceeds of corruption? 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.

An order is hereby issued that the above funds be forfeited to the Government of Kenya and transferred to the Assets Recovery Agency and the amount is about Kshs200 million.

She finds Mr. Rigathi Gachagua to have obtained Kshs200 million?

He was unable to explain how he obtained Kshs200 million.

What did the Judge do after that finding?

The Judge directed that the amounts be forfeited to the Government of Kenya through the Asset Recovery Agency, which is the body created under the Proceeds of Crime and Anti-Money Laundering Act to take care of money laundering.

Mr. Ongoya for the Deputy President was here and he firmly stated that you have no ground at all to bring this allegation in the Senate. What is your specific complain in the Senate on this allegation?

My complaint is that when a Judge in a functional democracy in a country of rule and law like ours makes a finding and judges make findings against all of us every day, the civil way of challenging that decision is through an appeal. You appeal the decision. You do not go to a rally and start threatening judges because you create fear in the judges so that they are not able to exercise their decisions independently. You can interfere with the financing of the Judiciary and other things, but let us not take away the decisional independence of the judges.

Hon. Mutuse, do you have any evidence you have submitted to the Senate to prove this allegation of interference with the independence of the Judiciary?

I have presented Video Nos.14 and 15.

Mr. Speaker, Sir, we request those videos to be played.

Hon. Senators, we can stop there. Hon. Mutuse, it looks like all the politicians who attended this public forum made statements against the judiciary. Is that correct?

Yes, it is correct that even others who were there made statements against the judiciary. There is no problem with that.

What is so extraordinary? Mr. Ongoya said there is nothing extraordinary about your complaint.

My complaint is extraordinary in the sense that the hon. Rigathi Gachagua was not complaining about the judiciary, but about a specific judge for a decision that she made, a finding that she made against him. It was not about corruption in the judiciary, inefficiency in the judiciary or how the Judiciary runs. It was about, “ huyo judge alisema mali yangu ni mali ya wizi.”

In that public statement, the Deputy President says he has evidence of corruption against Lady Justice Maina. In his response filed before this 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.

House, have you seen any evidence adduced for corruption against Lady Justice Esther Maina?

I have not seen any evidence to show that he has evidence of corruption influencing the judge to make the finding that the Kshs200 million were proceeds of crime. This leads me to my conclusion that this is a personal vendetta.

What do you mean by personal vendetta?

Personal vendetta: You are in the Senate representing your people, and you debate and make decisions here as part of your constitutional mandate. You mention people who are not doing things right and when you get out there, they threaten you. They tell you that when you say that again in the Senate, I will kill you. I will get you removed from the Senate to create fear. This is a personal vendetta.

The judgement you said is available on pages 60 to 77 and quoted to Volume 2(a) of your documents. Could you, by any chance, know what happened to this judgment?

Yes, I am aware that the Deputy President did appeal against that decision. After becoming Deputy President, the matter was settled through a compromise and the money was returned to him.

Have you seen this consent that was recorded at the Court of Appeal?

Yes, I am aware of the consent. I am aware that the consent was not arrived at based on the merits or demerits of the case. It was Government bodies because leadership changed hands and the second in command became powerful. A few Government bodies went to court and stated they wanted to withdraw the case.

Finally, hon. Mutuse, is there a decision of the Court of Appeal setting aside this judgement and Lady Justice Esther Maina's finding about His Excellency the Deputy President?

To my understanding and that of the lawyers in the House, we will also have the same finding. The Court of Appeal has not overturned Justice Maina’s decision. Therefore, Justice Maina’s decision remains good law.

You have combed through His Excellency Rigathi Gachagua's response. Have you seen any appeal decision setting aside the judgement?

The consent is there, but the Court of Appeal has not made a decision on merit.

Hon. Mutuse, let us go to Ground No.8. Briefly explain to the---

Before we leave there because we are complaining about Article 160, it is important for me to read Article 160(5). It says: “A Member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.” This is the particular Article we are complaining that the Deputy President has violated.

Okay. In your opinion, does undermining the impedance of the judiciary amount to a gross violation of the Constitution? 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.

Indeed, it amounts to a gross violation of the Constitution. It should be remembered that we have three arms of Government — the Executive branch, the Legislature, where we sit, and the Judiciary.

Is it proper for the Deputy President of the Republic of Kenya to make this kind of attack? Is it proper, in your opinion?

It is not proper at all.

To wrap that point up. What---

Counsel, before you get there, you have referred to a consent. Is it contained in any of these bundles? The Senators would wish to look at that consent.

Hon. Mutuse, you said you have seen a consent form and are aware of it. Have you seen the consent?

It is not filed in our documents. However, in my ordinary course of business, I am aware of the need for consent. If it becomes necessary, the Senate has the power to recall it. In fact, it is a public document because it is reported under Kenya Law reports.

Fair enough. Let us go to Allegation No.8. We do not want take a lot of time and finish our time. What is the substance of your Allegation No.8?

Ground No.8 is that there are serious reasons to believe that His Excellency Rigathi Gachagua has committed crimes under Section 132 of the Penal Code and Section 129 of the Leadership and Integrity Act. Basically, it is on two fronts. The two sections we have cited. Section 132 of the Penal Code and Section 29 of the Leadership and Integrity Act speak to State Officers misleading the public and spreading falsehoods. On the issue of Justice Maina, as we have shown evidence, it was a personal vendetta because the Deputy President was attacking the Judge based on a decision the Judge had made. Secondly, in terms of the particulars. His Excellency Rigathi Gachagua recklessly and unmindful of the high calling and dignified status of the Office of Deputy President of the Republic of Kenya as well as his membership to the National Security Council and Article 240 of the Constitution, both being positions that require one to be discrete and tempered, especially during moments of national crisis addressed Kenyans on live television in Mombasa County and publicly made sessional statements against the National Intelligence Service (NIS) an essential national security organ, its Director General and officers serving---

You can hold on there. Do you have evidence to prove these allegations about the live television statement in Mombasa by the Deputy President? Do you have any evidence before this House?

Yes, we have annexed our video No.15.

May I request we play video No.15, please?

Mr. Speaker, Sir, we can pause it because of time. We have captured the parts. 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.

Now, Hon. Mutuse, the Deputy President recently addressed a press conference where he rubbished this allegation. He said it is pure hogwash, nonsense upon stealth. What is your specific complaint against the Deputy President in this allegation?

I have two specific complaints. One, the Deputy President is a member of the National Security Council (NSC). If he has any complaints against the NIS, who also sits in the National Intelligence Council, he can raise those concerns there so that we promote institutional leadership.

You mean the National Security Council (NSC)?

The National Security Council (NSC) created under Article 240 of the Constitution. The Deputy President has a forum, unlike all other ordinary citizens, Senators included. We can complain out there because we do not have an official institutional forum. The Deputy President has a forum where he can raise his concerns. Two, this was a time of monumental crisis in the Republic of Kenya. The statements were sensational and would have made Kenyans to believe that our security organs are not functional. They would have easily led to citizens running amok, the Republic getting torn apart and our national fabric getting destroyed completely. Even more importantly, I heard learned Counsel Ongoya refer you to your oath of office. I would wish that he also refers his client to the oath of due execution of office that he did swear. In the oath of due execution of office that the Deputy President took on ascension of office, it states as follows. “That I will not directly or indirectly reveal such matters as shall come to my knowledge in the discharge of my duties and committed to my secrecy.” The emphasis is on “secrecy.” He has said in the clip that we have played that officers of the National Police Service (NPS) have told him in confidence that they had not received advance intelligence reports. That is what was contemplated by this oath of due execution of office. This is what Senior Counsel Orengo called “addressing fears”, that if a matter is committed to you as a state officer in secrecy, it must remain in secrecy. If you take it to a public press conference, then you have gone against your oath of office. That is an impeachable offence.

This oath of office that you say the Deputy President takes, is it anchored in any section of the Constitution?

Yes, the oath of office is in the Third Schedule of our Constitution and, therefore, part of our Constitution.

Can you read Article 148(5)(a) of the Constitution?

To begin with, under Article 74 of the Constitution, which says: “Before assuming a State office, acting in a State office, or performing any functions of a State office, a person shall take and subscribe the oath or affirmation of office, in the manner and form prescribed by the Third Schedule or under an Act of Parliament.”

What about Article 148(5)(a)? What does it say?

Article 148(5)(a) and (b) says: 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.

“The Deputy President-elect assumes office by taking and subscribing – (a) the oath or affirmation of allegiance; and (b) the oath or affirmation for the execution of the functions of office as prescribed in the Third Schedule” So, it is a constitutional issue.

Finally, the Deputy President in his press statement the other day, he said even in other countries with stable democracies such as the USA, it is not uncommon to see heads of intelligence institutions being attacked or criticised by public officers. What is your comment about that specific remark?

Even in our country, it is not uncommon, but it depends on who is doing it. The Deputy President of the Republic of Kenya cannot behave in a manner that disparages the institutions of the State that he was elected to superintend, especially so when he has official institutional forum to raise those concerns.

Is there a forum where the Deputy President can conveniently raise these issues without undermining public confidence in the security system and public trust in these institutions that are paid by the taxpayer?

I have said earlier, under Article 240, the membership of the National Security Committee is the President and number two, the Deputy President. The NIS is a member and, therefore, that can be canvassed behind closed doors in a formal way and a decision made, so that we do not break down our institutions. Instead, we empower them.

Which article of the institution are you referring to? Where NSC is established?

Article 240, if my mind serves me right. We can read it if we have time.

The other explanation by the Deputy President is that these agencies are accountable to the civilian authority and therefore not immune to criticism.

Article 240 talks about the establishment of the National Security Council. It says there is established the National Security Council. The Council consists of the President and the Deputy President, so is a member, by dint of Article 240. He says they are subject to civilian authority because of Article 1.

Because of time, let us go to the last allegation, which is Ground No.11. Are you there?

Yes, Mr. Speaker, Sir, I am there.

Can you explain to the Senators your specific grievance about this ground?

We are saying that the Deputy President has committed gross misconduct by bullying state officers.

What is your specific ground on that gross misconduct that you want the Senators to take into consideration?

Mr. Speaker, Sir, we are saying that His Excellency, Rigathi Gachagua, bullied Kenya Medical Supplies Agency (KEMSA) officials into awarding a tender for the supply of mosquito nets to Crystal Limited, his proxy company, 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.

that had submitted an irregular bid bond with the sole intention of fraudulently acquiring public property. Basically, in relation to KEMSA, so that we can paraphrase; KEMSA advertised a tender funded by the Global Fund, which is one of our major development partners in terms of delivery of health care in Kenya. The tender was valued at about Kshs3.7 billion. At the time, the procurement process got botched up. The Senate would take notice that at that time, the PS in charge of public health and the Chief Executive Officer (CEO) at KEMSA were dismissed by His Excellency the President. An acting CEO was then appointed. The Acting CEO also swore an affidavit to this regard. The problem here was that there was an Indian-based company, called Shobikaa Limited. We have been told we are bringing in a company that was not part of the tender. In the evidence of the Deputy President, this company called Shobikaa Limited is represented locally here in Kenya by a company called Crystal Limited. That is by admission of the Deputy President himself in his own response. We have demonstrated all the way from Nyeri, Malindi to Kilifi that this company Crystal Limited is the major special purpose vehicle that the Deputy President has been using to acquire property and to launder money. This company has an agency agreement with Shobikaa Limited to represent them locally. The evidence that we have placed on record is that when Mr. Andrew Mulwa is appointed the new CEO of KEMSA, at that time, investigations are going on into the irregular procurement of the Kshs3.7 billion mosquito nets. One of the issues of interest in that tender is how Shobikaa Limited submitted their bid bond. The main complaint was that they submitted their bid bond outside the tendering period. When investigations are going on, the Deputy President, who admitted live on television, called Mr. Andrew Mulwa, the Acting CEO of KEMSA and told him, I have sent my people, please give them that bid bond. He said that he did it because people were wondering. We have annexed messages, WhatsApp excerpts, in the affidavit of Mr. Andrew Mulwa that is contained Page 67 of Volume 1 all the way to Page 77. We have annexed the witness affidavit of Mr. Andrew Mulwa and on it, we have also exhibited SMS messages---

Hon. Mutuse, we have seen the affidavit. You have said it is at page 67. Yes?

Yes, page 67 of Volume 1.

You have also said that the Deputy President attempted to interfere with this tender process?

There is evidence.

Where is that evidence so that we can conclude our testimony?

Mr. Speaker, Sir, it is the evidence on oath of Mr. Andrew Mulwa.

Is that the evidence on page 70? 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.

I read and Dr. Mulwa is available for this purpose. He says on Page 68 Volume 1 Paragraph 4: “On or around 11th July, 2023, His Excellency Rigathi Gachagua called me from his mobile phone number - and he has given the number there - on my mobile number - and pressured me to surrender to his proxy the original bid bond submitted by Shobikaa Impex Private Limited for the above tender. He told me that he would send a proxy to collect the original bid bond.” He goes ahead to state, Dr. Ikinu Rigathi, His Excellency Rigathi Gachagua’s son, called and sent a WhatsApp message from a mobile number indicated, claiming to be acting for and on behalf of His Excellency Rigathi Gachagua. He asked for---

Where is that WhatsApp message exhibited so that we can wind up this session?

Go to page 70.

Page 70 of your volume?

You will see, you will see WhatsApp messages that are exhibited from the phone of Dr. Ikinu Rigathi.

Who is Ikinu Rigathi?

He is a son to Rigathi Gachagua and the message says as follows:- “Hello, Dr. Ikinu Rigathi here. Kindly contact me when possible. There is a document for H.E - H.E is the short form for His Excellency - we are trying to collect”. He was not collecting his own document. He was not collecting a public document. He was collecting a document for H.E.

We can stop there, Hon. Mutuse. Now, finally, have you sworn an affidavit to support these allegations against the Deputy President?

Yes, indeed, I swore.

Where is this affidavit?

In Volume 1 of our bundle of documents on page 41 of 85. From Page 41 all the way to Page 43 is my affidavit in support of all the grounds of impeachment against the Deputy President.

Thank you, Mr. Speaker. Sir. We request to end our examination in chief for this witness because of time. Thank you for your indulgence and accommodating us.

How much time is remaining out of the three hours?

So, Counsel for the National Assembly, you have 45 minutes to conclude your case to call the other witnesses and do the re-examination. That is the time remaining. Now, Counsel for the Deputy President, you have two hours in total for cross- examination of all witnesses that will be presented. So, you may choose to use all that with this witness or you may decide on how you are going to apportion it. You may now proceed to cross-examine the witness. Your time starts running from now. 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.

Mr. Speaker, Sir, this is Ongoya for the Deputy President. I noticed that we have two hours---

Mr. Speaker, Sir, there is a request from our side which we hope will find favour with you. The witness has been on his feet for quite long and to save time, there is a suggestion that perhaps we could call our next witness, by which time he will have taken a breather, then we come to his cross-examination. However, I leave it to your discretion.

Give him a seat. Let him be cross-examined while seated.

I am much obliged, Mr. Speaker, Sir.

Thank you, Mr. Speaker, Sir. Once again, I am Ongoya, Counsel for the Deputy President. Our request is that the schedule allocates us two hours for cross-examination in total, and three hours for our evidence-in-chief, tomorrow. We beseech that without compromising that time, we put three hours on cross- examination, which will eat from our own time tomorrow, so that we will have two hours to deal with our evidence-in-chief.

That is not in line with the directions that I have given. You have two hours for purposes of cross-examination of these witnesses.

Thank you, Mr. Speaker, Sir. We shall proceed. Hon. Mutuse, I will refer to you as Hon. Mutuse throughout. For the benefit of the Senators, we were contemporaries at the university, many years ago. Mr. Speaker, Sir, as they are setting up the witness administratively, I beg to have my time paused.

Proceed, Counsel.

Thank you. Hon. Mutuse, before being a Member of Parliament, what is your professional background?

I am a lawyer.

As a lawyer by profession, you understand the substantive laws and the procedural laws of this country. Is that a fair assessment?

Yes, it is.

I will take a few minutes examining you, then I will release you to my learned colleagues, Mr. Swanya and Mr. Macharia, to take you on a number of issues. However, allow me to start with the issue of Justice Esther Maina. You are aware, being a lawyer, that by law, you are bound by the allegations you presented to the National Assembly. Are you aware of that?

Yes, we are bound by the allegations in the context of the rules of the Senate and the other laws.

To deal with the issue of Justice Esther Maina, allow me to take you to paragraph 64(a) of your allegations. That would be Volume 1 of the National Assembly documents, page 32. Do you have that allegation?

Yes, I am there.

The allegation says that sometime in January 2024, His Excellency Rigathi Gachagua made a sensational, but false allegation that Hon. Esther Maina, Judge of the High Court, had engaged in corruption. He publicly said that he 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.

would present a Petition for the removal of the said Judge, which he has not done to date. It is your allegation that Hon. Rigathi Gachagua has not presented this Petition to date, being 26th of September, 2024. Is that true or not?

This is in context.

Is this true or not? Is it true that your claim says he has not presented that claim as at 26th?

It is true.

Do you still stand by that part of your allegation that he has not presented that complaint to the Judiciary Service Commission (JSC) to that date?

I have since learned that indeed, His Excellency Rigathi Gachagua did present a Petition. However---

Do you still stand by the fact that he has not presented the claim to the JSC as at 26th September, 2024?

I have since learned that he did present a Petition.

To that extent, that allegation is not true. Right?

To the extent of presenting the Petition, but to the extent of threatening the Judge---

To the extent that you say he has not presented the allegation to the JSC as at 26th September, 2024, that allegation is not true, is it?

We are in agreement, Counsel.

Thank you. Therefore, do you understand where we start from by saying it starts with falsehoods? Do you?

That is you, saying so.

I have asked whether you understand it. You have drawn the attention of these Senators to the judgment of Justice Esther Maina. Have you not done so?

I have done so.

Your intention of doing so is to have these Senators draw an inference of acts of corruption on the part of His Excellency. Is that true or not?

It is true.

Thank you.

My allegation is that Justice Maina had made a finding against the Deputy President.

Did you attend the hearing of that case?

I do not have to attend. It is a reported case.

I have asked whether you attended. Please, answer my question, you know the process.

I did not attend.

His Excellency the Deputy President, in the clip you have played, says that the judge denied him a chance to cross-examine witnesses. Did you see that in the clips?

Yes, I did see.

Did you have any evidence to the contrary that the judge did not deny him? 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.

If you are denied---

Do you have any evidence to the contrary? It is either you do or not.

That is not my allegation.

My question to you is: Do you have any evidence to the contrary? Answer my question.

The truth is that is a judicial process.

Do you have any evidence to the contrary when His Excellency the Deputy President says the judge denied him a chance to cross-examine witnesses?

I do not have to.

Do you have it, Hon. Mutuse? Please, be decent as a lawyer, a lawmaker and a witness before this House.

Hon. Mutuse, these are questions that you either say yes or no.

Thank you.

You then say you are aware that there was an appeal from the decision of Justice Maina. Do you confirm that as a fact?

Yes, I am aware that there was an appeal that was---

I am happy with that answer. Let me make progress. That appeal was settled by consent. Is that true or not?

It is true.

Is a consent a lawful way of settling disputes in court, to your knowledge, as a lawyer?

It is a lawful way, but it is not a settlement by merit or demerits.

Is a consent a lawful way of settling court disputes before a court of law?

It is a lawful way, but---

I am going to my next question. Mr. Mutuse, you have confirmed my answer. Do you know as a lawyer that a consent order adopted by the court becomes an order of the court?

Indeed.

Have you presented that consent before these Senators for their own assessment of it?

It is not part of my case.

Have you presented that consent before the Senators for their own assessment of it?

It was not part of my case. Therefore, I did not present it.

Hon. Mutuse, I have asked whether you have presented it.

No.

Have you lodged any complaint against the public officials of the Asset Recovery Agency who signed that consent?

I have lodged it in Parliament. 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.

Have you lodged it before any investigative agencies?

Through this Motion, I lodged a complaint in the National Assembly, exercising the powers that I have as a Member of the National Assembly.

I sought to know whether you have lodged any complaint against the officials of the Asset Recovery Agency. Are you saying this Motion is against the officers of the Asset Recovery Agency?

This Motion is against the handling of that case.

Are you saying this Motion is a complaint against the officers of the Asset Recovery Agency?

I am not saying so.

Have you lodged any complaint against the officers of the Asset Recovery Agency who entered that consent?

I have not done so.

Are you suggesting that in a way this Motion is an appeal against the consent order in the Court of Appeal?

I am not suggesting so.

By the way, do you know the position of the law on illegal consents? Can a court of law accept an illegal consent?

I would not imagine that.

You are a lawyer. Can a court of law accept an illegal consent?

No.

Was this consent accepted by a court of law?

It was adopted, yes.

Should that not present a presumption of legality until you present evidence to the contrary?

Indeed.

Thank you. Allow me to move to a second element; the videos in respect of the evictions along the Nairobi River. I trust that was Video 9 and 10. Let us have Video 9 played from the technical side.

Mr. Speaker, Sir, may I have Video 9 played? We may need to have the sound, Mr. Speaker, Sir. I would argue that the time taken by the technical people to play my videos is frozen because I have no control about it.

No, that cannot be the case. Otherwise, we will continue freezing time.

Mr. Speaker, Sir, may you then direct the people in the technical side--- 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.

We had a similar problem when the Counsel for the National Assembly was leading the witness in evidence-in-chief and time was not frozen. So, we will be fair by applying the very same rule.

Mr. Speaker, Sir, may I have the technical side play my videos? My time is running.

Mr. Speaker, Sir, may I get a fair treatment on this question? May I get my videos played without eating into my time?

That is exactly what is happening.

That is a wrong video being played. May I have Video 9 played?

Can you pause the time for Counsel?

Thank you, Mr. Speaker, Sir. May I then have Video 10 played? I have 10 and 10A.

Counsel for the Deputy President, is it a video that had been played previously?

Yes, there are two videos in respect of the evictions along the Nairobi River. They were played here seamlessly when the Assembly side were presenting their case.

Very well. Counsel for the Deputy President, do you have your technical person under control?

I would not be able to establish at the moment.

Please, confirm that your technical person is also in the control room.

Mr. Speaker, Sir, may I move to some other things, then I will proceed with the video later?

Proceed, Counsel.

Thank you so much. Hon. Mutuse, allow me to move to another limb, which is at paragraph 74 of your Motion. That is at page 36 and it runs to page 37. Mr. Mutuse, confirm that in respect of Ground 10, paragraph 74(a) and (b) are the two illustrations, the two particulars that you have given to prove that ground.

Yes, in the Motion, those are the two grounds.

Let me start with paragraph (b). Confirm that you alleged that His Excellency Rigathi Gachagua has influenced his family members, allies, associates and proxies to take control of a local corporate society in Mathira, which they are financially haemorrhaging. Is that what the Motion claims?

It does claim so. 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.

Confirm that you have not given us the name or any evidence of that circle, have you?

There is a problem up there. Proceed then. Let the Senators know when you wish the video to be played.

Secretariat, can you move to the control room and tell them to wait?

Hon. Mutuse, please, speak closer to the microphone.

I would be urging the Senate to support the impeachment.

Mr. Mutuse, I am asking a specific question on a specific allegation. It is your desire for these Senators to impeach this Deputy President on an allegation that he has through his proxies taken control of a cooperative society we do not know? Is that not it?

I have said that I leave that to their decision.

Is that what you desire? You want some outcome from this process, as the Mover of this Motion. Is that what you want?

What do you understand when I say I leave it to their decision?

You have no right to ask me any questions.

Hon. Mutuse, just say yes or no. We need to make progress.

Thank you.

My apologies, yes.

Thank you so much for that comic moment. You also want this distinguished Senate to find the Deputy President to have taken over the control of this unknown Sacco, now this is my element, through undisclosed family members.

Indeed, it is my desire that the Motion is upheld.

Hon. Mutuse, do you know the seriousness of the business that keeps us here?

Very well.

My apologies, I did not get the answer.

I know. 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.

Thank you. You find this request for Senators to find this Deputy President guilty of taking over an undisclosed Sacco, a serious expectation on your part?

Indeed.

You also find your expectation for these Senators to find the Deputy President to use unknown family members to take over that Sacco a serious expectation?

Indeed.

You take your work as a Member of Parliament (MP) seriously?

Very seriously.

You respect your constituents who brought you to this House?

Very much.

You are manifesting that respect for your constituents by this expectation you have just mentioned here?

In fact, the whole country is discussing my Motion.

I am asking whether you are manifesting your respect for your constituents by the expectation you have just alluded to?

In the totality of the---

No. I am talking about this particular fact. I am dealing with a particular fact.

In the totality of the Motion, yes.

My question is your expectation for this Senate to find the Deputy President culpable on allegations of undisclosed family members over undisclosed Sacco. That allegation you are manifesting your respect for your constituents through that allegation?

Yes.

Thank you. Paragraph (a) alleges that H.E. Rigathi Gachagua has connived with cartels in the tea sector to block the Kenya Tea Development Agency (KTDA) from implementing guaranteed minimum returns that would benefit smallholder tea farmers. Is that the allegation?

Indeed.

Have you given us in this Motion or in the supporting evidence the name of any cartel?

No.

Have you given us in this Motion or in the supporting evidence the grievance or the complaint by the KTDA?

No.

This is also part of your expression of respect for your constituents?

Indeed.

It is also part of the seriousness with which you take this Motion? 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.

Indeed.

Thank you. Mr. Speaker, Sir. May I now move to the Video 10 and 10A. Let us start with Video 10 first.

Just pause there. Up to that time, the Deputy President is suggesting that he needs citizens there to have a small committee to have an engagement with him. True or not true?

True.

Is there anything wrong with that claim by the Deputy President?

There is nothing wrong with it.

Let us proceed.

Let us pause there. The Deputy President is saying he wants to listen to those people so that together they can talk. Is that what he is saying?

Ambayo ni kitu tulikuwa tumeahidi haitafanyika Serikali yetu.

No, you did not get my question. Mr. Mutuse, please, be a good listener. Just answer my questions. The Deputy President is saying he wants to sit with Hon. Mejjadonk and those people and talk. Is that what he is saying?

In context, yes, that is part of it.

Is there anything wrong with that statement?

There is nothing wrong with people sitting.

The Deputy President is also saying that they had promised during the campaigns that they will not be demolishing people's structures. Is that what he is saying?

Yes, he is saying that.

Is there anything wrong in that promise?

There is nothing wrong in that promise.

As an active member of the Kenyan political space, is he lying that there was such a promise?

I would not know.

You would not know. Let us proceed.

Let us stop there. The Deputy President is saying let us not have war with

. Do you find anything offensive in that statement?

There is nothing offensive.

Thank you. 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.

He is calling for empathy towards wananchi. Is that correct?

Yes, indeed.

Do you find anything offensive in that call?

It is the forum where he is saying it.

Do you have anything wrong with that call for empathy?

I have a problem with the forum.

No, you are answering your own question. I am asking whether you have a problem with a call for empathy.

My allegation is that he had forum---

I am asking whether you have a problem with his call for empathy. Please, answer my question.

He would have said as much in the Cabinet.

Please answer my question. Do you have a problem with a call for empathy?

I have no problem with the call for empathy.

Let me move to the next question. Do you have a problem with a Deputy President calling for empathy in public?

I have no problem other than the forum.

What forum was that, by the way?

This appears to be a press conference.

What law prohibits a Deputy President from calling for empathy at a press conference?

The law is that you raise all those issues in Cabinet.

Which law prohibits a Deputy President from calling for empathy at a press conference?

There is no law that prohibits a Deputy President from calling for empathy at a press conference.

Thank you so much. Let us make progress with the playing of the video.

Thank you so much. What is wrong with that statement, “if people must move, let there be an engagement.”

There is nothing wrong with having engagement.

Thank you. You are a lawyer. You said.

Yes.

You know the principle of public participation?

Indeed. 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.

It is actually what the Deputy President is addressing. The Deputy President is saying let us have an engagement that is consistent with the principle of public participation. True or not true?

Well, that is you saying so.

The Deputy President is saying let us have an engagement. Is that consistent with or inconsistent with the principle of public participation?

Engagement and public participation may mean different things at different levels.

The Deputy President is saying let us have an engagement. I am asking whether that is consistent with or inconsistent with the principle of public participation.

Again, as I said, we would imagine before a policy goes to Cabinet, it has also been taken through public participation.

Did you engage in public participation?

If you sit in Cabinet, you raise objections to that policy. If your objections are upheld, the policy falls.

Which part of this statement by the Deputy President---

If your objections---

Sorry, I am now asking the question.

Yes.

Which part of this statement calling for empathy violates a policy decision of the Cabinet?

We have the affidavit of Mercy Wanjau that clearly shows that the Cabinet adopted a position.

Did the Cabinet adopt a resolution for un-empathetic evictions?

The Deputy President was in the Cabinet. He is the one who is better placed to tell us.

You are the Mover of this Motion and we are testing the Deputy President's statements against your allegation. Did the Cabinet adopt a resolution for un-empathetic evictions?

The Cabinet adopted a resolution.

Did the Cabinet adopt a resolution for un-empathetic evictions? Yes or no?

A resolution for empathetic evictions.

The Deputy President here is calling for empathetic evictions from what we have heard. True or not true?

True.

So, that is consistent with the Cabinet resolution. True or not true?

Semantics.

Mr. Speaker, Sir, has my question been answered from your understanding? I do not think it has been answered.

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.

Order, Hon. Senators. Simply note how the witness is answering the questions, then you make a judgment. Let us make progress. If a witness is evading questions, please note that, then we proceed.

Mr. Speaker, Sir, you were right in that ruling that he is doing this at the expense of my time and the Deputy President's time. That will compromise the Deputy President's right to a fair hearing because he has to have adequate time, which means time managed economically.

Proceed.

Did the Cabinet approve un-empathetic or empathetic evictions?

Mr. Speaker, Sir, the Cabinet approved evictions in public interest.

I am asking a different question.

Empathetic.

Did the Deputy President call for empathy or lack of empathy?

Empathy.

Is that call by the Deputy President consistent or inconsistent with the Cabinet resolution?

Inconsistent.

Did the Cabinet approve a resolution not to engage citizens in the demolitions?

That I would not know because I am not a member of the Cabinet.

Yet you are saying that call by the Deputy President to engage citizens is part of the violation of the Cabinet resolution?

In context.

Hon. Mwengi Mutuse, I sought to know whether you respect the people who elected you. Do you suspect they will respect you with this behaviour that you are showing here?

Mr. Speaker, Sir, I will also request for your protection because the people of Kibwezi West are not on trial.

I did not try to---

Counsel for the Deputy President, just stick to the subject matter.

Mr. Speaker, we seek that our witness not be subjected to barbs or badgering. The question whether he respects or the people respect him and what not should not arise. The allegation is clear in black and white. It would help if we could stick to that.

My learned colleague, Dr. Thiankolu---

Counsel, I have already ruled on that. 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.

I know, but Mr. Speaker, Sir, there is a question or issue here.

Let us make progress.

Mr. Speaker, Sir, I will make progress as you direct. Let us look at Paragraph 72 at Page 35 of Volume one, Page---

Which page?

Mr. Speaker, Sir, my apologies. It is page 36. The original Motion had it on page 35 and now page 36 in the reproduced Motion, paragraph 72. You are saying that His Excellency Rigathi Gachagua has persistently undermined, demeaned and committed insubordination instead of assisting the President. Hon. Mwengi Mutuse, has the President of the Republic of Kenya complained to you that he is being undermined by his Deputy?

No.

Does the Deputy President have another supervisor in the structure of Government other than the President?

He has the people of Kenya and Parliament.

Have the people of Kenya complained to you that the Deputy President is undermining the President?

Many of them.

Have you presented before this Senate those complaints that have been given to you by the people of Kenya?

Mr. Speaker, Sir, I am their representative.

Have you presented the complaints, emails, letters and messages? You have given us screenshots here. Have you given them to the Senate that the Deputy President is undermining the President?

That I do not have, but I have presented the Motion.

Allow me to move to Ground No.4. Let me start by asking this question. It is your claim that the Deputy President has amassed humongous property portfolio estimated at Kshs5.2 billion.

Is that Ground No.4? It is not.

My apologies. It is Ground No.7 on page 17. My apologies for that.

Yes, Mr. Speaker, Sir. It is our allegation and we have justified it in our evidence in chief.

Who gave you this value of Kshs5.2 billion?

We say that it is estimated at Kshs5.2 billion and we have---

Who gave you that estimate value of Kshs5.2 billion?

Mr. Speaker, Sir, we have made the additions.

Sorry?

It is a matter of additions.

So, you are saying that when we take you through these values, you will get a property value of about Kshs5.2 billion?

Yes. Approximately Kshs5.2 billion. 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.

You said you made the additions and additions result into a definite figure, Hon. Mutuse. Although you are a lawyer, mathematics is a prequalification for studying law.

There are two things. First, there---

Are you saying that when we do those additions, we will get Kshs5.2 billion?

Mr. Speaker, Sir, there is the stated value in the sale agreements and in the acquisition documents.

That is what I am saying. Are you saying when we add those values, we will get Kshs5.2 billion?

I will also be telling you what, in my view, the sum of some of the properties is.

Oh, what, in your view, are the values of some of the properties?

Yes.

You have graduated from a lawyer to a valuer now. Is it not so?

That is not exactly what we are saying.

Okay, thank you. Using what expertise did you attach that value in your view?

At market value. I am sure you also know that an acre of land in Kitale goes for Kshs4 million. An acre of land in Kilifi goes for Kshs2 million. If it goes beyond that, it is a reasonable man's test.

So, that reasonable man is you?

Indeed.

Thank you. At paragraph 44, page 18, you have listed a company called Spirit Way Limited in your Motion. Yes?

Number 18.

Page 18, paragraph 44. It is a continuation of Ground No.7. I am reading Ground No.7 right now.

Page 18, Spirit Way Limited.

What wrong are you saying that company has done anywhere on earth? What role?

Mr. Speaker, Sir, I listed these companies---

No. I am asking about Spirit Way Limited. What wrong are you saying Spirit Way Limited has committed anywhere on earth?

Mr. Speaker, Sir, these are companies that are associated with His Excellency Rigathi Gachagua---

So, what wrong has Hon. Rigathi Gachagua committed through Spirit Way Limited? I am dealing with this one now; Spirit Way Limited. What wrong has he done through this one?

Mr. Speaker, Sir, it is one of the companies that we reasonably suspect are a used as conduit. They are used as special purpose vehicles for corruption. 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.

So, what proceeds of corruption have passed through it and how much?

Mr. Speaker, Sir, we have demonstrated the specific---

No. I am asking you of the proceeds of corruption that have passed through Spirit Way Limited as a particular company.

Mr. Speaker, Sir, we have not presented evidence against Spirit Way Limited.

You have not?

Yes.

In correct English, when I say, “you have not, you say “no, we have not.” You do not say “yes.”

Okay.

You have not presented evidence?

Mr. Speaker, Sir, we have not presented evidence.

Thank you. Let us move to Fortis Vis Group Limited. What wrong has Fortis Vis Group Limited committed anywhere on earth?

Fortis--

Number two on page 18 of 85 of Volume one.

We have no quarrel with Fortis Vis Group Limited.

Sorry, I did not get the answer.

We have no quarrel with Fortis Vis Group Limited---

You do not quarrel with Fortis Vis Group Limited. What is it doing in this Motion, Hon. Mutuse? Is it decorative?

It is one of the companies associated with His Excellency Hon. Rigathi Gachagua.

What is wrong with Fortis Vis Group Limited being associated with Hon. Rigathi Gachagua? What is wrong with that?

At the time of submissions, we will be stating why we think there is something wrong.

No, we want that question answered now so that we will submit on it. What wrong has Fortis Vis Group Limited committed anywhere on earth?

Why would one person own 25 companies doing the same things?

What law prohibits a person from owning 25 companies? What law?

Counsel for the Deputy President, Hon. Mutuse has said he has no quarrel with that company.

Mr. Speaker, Sir, I made an opening statement. In my opening statement, I said we have allegations that oscillate from the false, to the ridiculous, to the embarrassing. If he just answers and I keep quiet, I will fail to demonstrate the oscillation. I want these distinguished Senators, in their conscience, to know what exactly we are doing. They were given an 85-page Motion to deal with. This is part of the content of 85 pages. 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.

Mr. Speaker, Sir, for Mr. Mutuse to tell these Senators that he brought them this company just as a name, I do not know how dignified this House would feel. However, if I sat where this House sits, I would feel that is undignified.

Proceed with your cross-examination, Counsel.

You say one person should not own 22 companies, is it not?

I have said I do not have---

No, you said so. That is your answer.

I do not have a problem with Fortis Vis Group Limited.

That is correct. Who are the shareholders of Fortis Vis Group Limited?

It is Kevin Rigathi and Keith Ikinu Rigathi.

The only crime being they are children of Rigathi Gachagua?

Indeed, they are children of Rigathi Gachagua.

Are they prohibited as children of Rigathi Gachagua from holding shares in a company?

As proxies---

Are they prohibited from holding shares in a company?

Not at all.

So, what proxy business has Fortis Vis Group Limited done?

I have already stated that we do not have any problem with Fortis Vis Group Limited.

You have, however, put it in your Impeachment Motion to support one of your grounds?

It is there.

Without any problem with it?

It is there and we have stated the reasons why it is there.

Grand Bypass Apartments Limited; what problem do you have with it?

We do not have a problem with it.

This company that you have listed, you have no problem with it?

We do not have a problem with it.

You have, however, put it as one of the grounds in your Impeachment Motion?

It is one of the companies associated with Rigathi Gachagua. There is no problem with listing and saying I am focusing on this one and not focusing on this one.

Page 19, Company No.5; the Anansi Collective. What problem do you have with it?

You are skipping Vipingo Beach Resort Limited and Kuruwitu Properties Limited?

Do you want to control my cross-examination? 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.

Hon. Mutuse, just respond to what the Counsel has asked.

We do not have problems with Anansi Collective.

Biovet Kenya Limited; what problem do you have with it?

We do not have a problem with it.

Calvary Creed International Limited; what problem do you have with it?

We do not have a problem with it.

Cosmere Venture Limited; what problem do you have with it?

We do not have a problem with it, but we have a problem with No.2

Delta Merchants Limited; what problem do you have with it?

Not at all, but we have a problem with Vipingo Beach Resort Limited.

Let me go to Vipingo Beach Resort Limited because you appear excited to go there. Who owns Vipingo Beach Resort Limited? Just answer my question.

I need to check my CR-12s.

Show us the volume that you are checking for us to look at it together. Mr. Speaker, Sir, I would not mind a time indication of how much time I have spent.

Vipingo Beach Resort Limited is on Volume 2A, page 18.

You spent 40 minutes of the two hours. There is an additional 10 minutes for the period we had a problem with the video.

Thank you so much, Mr. Speaker, Sir. Give us the page number, kindly?

Page 18 of 123, volume 2A.

Yes, proceed. Who owns Vipingo Beach Resort Limited?

Keith Ikinu Rigathi, Kevin Gachagua Rigathi, and the estate of the deceased James Nderitu Gachagua.

Let me go back to the beginning. You are a lawyer by profession

Yes, I am.

You know the meaning of ownership of a company?

Yes, I do.

How is ownership of a company manifested?

In shareholding---

How many shares does Keith Ikinu Rigathi hold according to your own exhibit? It may be getting hotter, but look at the document, compose yourself 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.

and read. How many shares does Keith Ikinu Rigathi hold according to your own document?

They are not indicated.

How many shares does Kevin Gachagua Rigathi hold according to your own exhibit?

They are not indicated.

What is the total number of shares in that company?

Who is indicated as owning all those 10,000 shares?

There is a shareholding by the estate of the deceased James Nderitu Gachagua.

It is the estate of the deceased James Nderitu Gachagua. True or not true?

They own 10,000 shares.

What is the total number of shareholding?

They own all the shares?

They own 10,000 shares.

What is the total number of shares in that company?

So, they own all the shares. The estate of the late James Nderitu Gachagua owns all the shares, according to your document.

It would appear so.

Is it so or not so, from your own document?

On the face of the document, it would appear so.

Do you doubt this document you have given us?

No, I do not doubt it.

Thank you. The Deputy President in defence says this is a property owned by the estate of my late brother. From your own document, is he speaking the truth or not?

We

The Deputy President says, “This is a company owned by the estate of my late brother.” Looking at your own document, is the Deputy President saying the truth or is he not saying the truth? Remember, you are a lawyer all the time.

The estate of the deceased James Nderitu Gachagua owns 10,000 shares.

Out of how many shares?

I would not vouch for the truthiness of the Deputy President's testimony.

I am asking the estate of the late James Nderitu Gachagua owns 10,000 shares out of how many?

Mr. Mutuse, you told me you are a lawyer.

Yes. 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.

Let us be lawyers now.

Yes.

When the Deputy President says this company is wholly owned by the estate of my deceased brother, is he speaking the truth or not according to your document?

It is either yes or no so that we make progress, Hon. Mutuse.

Yes.

Thank you so much. You had begun by telling us you have a problem with this company. Do you have a problem with the estate of the deceased owner holding all the shares in the company?

No, we do not have a problem with that.

From your company law knowledge, do you know the role of directors in a company?

Yes, I do.

What role do directors play in a company?

They direct.

Directors are management. They manage.

They direct the leadership.

Correct. What is wrong with these two boys managing this company on behalf of the shareholders who are disclosed? What is against the law?

There is nothing wrong.

Okay. The value of this hotel is part of your Kshs5.2 billion. True or not true?

It is.

Are you willing to deduct it now from that because you can now see who owns it?

At the appropriate time, we will show you.

Are you willing to deduct it?

No.

Thank you. I was proceeding before you stopped me to deal with Vipingo Beach Resort Limited and I have dealt with it. I hope you are satisfied. Are you satisfied?

We can proceed.

Heartland Supplies Limited; what problem do you have with it?

If you could remind us, what page was that?

That was on page 20 of 85, Company No.14, Volume 1.

Just to confirm we are on the same page, this is Heartland Supplies Limited.

Yes.

We have no quarrel with Heartland Supplies Limited.

Page 21, Paragraph 17. Mothers of the Land Limited; what problem do you have with it? 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.

We have no quarrel with Mothers of the Land Limited.

No.18; Pioneer Medical Kenya Limited; what problem do you have with it?

We do not have a problem with it.

Overleaf on page 22; Ridor Furniture Mart Limited; what problem do you have with it?

We do not have a problem with it.

Royal Crimson Ventures Limited; what problem do you have with it?

No, not at all.

Technical Supplies and Services Limited; what problem do you have with it?

We do not have a problem with it.

You listed all these companies to create a screaming headline for your Motion with no problem with them?

We listed all these companies to show that they are associated with persons close to the Deputy President and they are companies that are either used or can potentially be used for purposes of corruption and money laundering.

So, they can potentially be used. The DP intends to use them in future. So, this Motion is preventive.

Indeed, we are addressing fears.

You have come here to address fears that the DP may use these companies in future to commit corruption.

Mr. Speaker, Sir, yes, indeed.

That is why you want this Senate to impeach the DP on this ground.

There are some that we have shown have been used---

I have taken you through a number of companies, one by one and you have said you have no problem with them.

We have no problem with the ones that we have said we have no problem with.

Let us go to paragraph 78A. His Excellency, Rigathi Gachagua bullied KEMSA officials into awarding a tender for the supply of mosquito nets to Crystal Kenya Ltd. Was Crystal Kenya Ltd a bidder for this tender?

Crystal Kenya Ltd is a local representative.

I have asked; was it a bidder for this tender? Let me now ask you basic questions. Do you know the meaning of the word bidder?

Hon. Mutuse, it is very simple. Respond so that we make progress.

It was not a bidder.

Let us read the particulars of the allegation, the particulars. It says, His Excellency Rigathi Gachagua bullied Kenya Medical Supplies Agency 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.

officials into awarding a tender for the supply of mosquito nets to Crystal Kenya Ltd. Was Crystal Kenya Ltd, in fact, awarded that tender?

They were not a bidder.

Were they awarded that tender as your ground alleges?

No, they were not.

So, why are you alleging that they were bullied into awarding the tender? Why are you alleging when they were not awarded?

They are the local representatives because they are the local representatives of Shobikaa, the company that is under investigation for this tender.

Your ground says His Excellency Rigathi Gachagua bullied KEMSA officials into awarding a tender for the supply of mosquito nets to Crystal Kenya Ltd, his proxy company. Full stop. Is that allegation correct and true?

It is true to the extent that they are local representatives.

It is true that His Excellency Rigathi Gachagua bullied KEMSA to award a tender to Crystal Kenya Ltd, his proxy company. I am asking you a different question. Your allegation is that KEMSA was bullied to award a tender to Crystal Kenya Ltd. Full stop. Am I reading it correctly?

You are reading it correctly.

Is that what I have read correctly itself true?

In the narrow sense, it is not true.

Thank you. You also say that Crystal Limited had submitted a fake big bid bond with the sole intention of fraudulently acquiring public property. What do you mean by a fake bid bond?

An irregular bid bond; a bid bond that was found not to meet the requirements.

What was the irregularity that was found in that bid? You are the one who has brought the allegation here. There was a specific irregularity. What was it?

It was brought outside time.

You are sure of that fact?

It was brought outside time.

You are sure of that fact.

In so far as I know.

You are on oath. Are you sure of that fact?

As far as I know.

Are you sure of the fact that it was brought out of time?

In so far as I know.

You referred us to the letter by KEMSA terminating that bid. Can you draw us to that letter, the volume number and the page where it is? Mr. Speaker, Sir, the Counsel is talking to the witness and you can see he is answering the question. He is a junior colleague and he is engaged in extremely unethical behaviour. That should not be done in a small claims court, forget about our country's Senate. You have seen it with your own eyes. 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.

Counsel for the Deputy President, I cannot hear exactly what was exchanged there. Therefore, I do not have the benefit of what was exchanged and I am not in a position to rule on it. Let us make progress, hon. Mutuse.

We have the affidavit of Dr. Andrew Mwaura who was the acting CEO of KEMSA at the time.

I have asked for the letter from KEMSA rejecting the bid.

In our Volume 1 from page 67.

You referred to the letter by KEMSA that rejected the bid in this mosquito net deal.

No, I referred us to the messages from hon. Gachagua's son to the CEO.

Let us go to that directly finish with it now that you have raised it. Are you referring to the document at page 70 of Volume 1? From which phone number is that message coming from? It needs to be read. Just give me the phone number.

No. 254 717871036

I am asking at that page, we can see a screenshot of a message. Is that screenshot telling us the phone number it is coming from?

It is not.

Thank you, Mr. Speaker, Sir, I now want to deal with the document I had looked at earlier. Let us look at Volume 3 of the Deputy President's documents on page 180. That is a letter from KEMSA.

Yes, on the face of it.

It is addressed to Shobikaa Impex Private Limited. It is setting out the reason why that bid was unsuccessful. Does it set out the reason? It says, “reference is made to the above.” We are looking at page 180 of Volume 3 of the Deputy President's documents and for those of us who can see the phone on the screen, it has been projected on the screen. It is setting out the reason why that bid was rejected. It is because the tender security was not paginated.

Yes, from this document it says so.

That is what you are calling a fake bid document? That is what you are describing as a fake bid document. I am asking: Is this the reason you are saying constitutes a fake bid document?

Of course, if the tender security was not paginated, it is irregular.

Are you saying it is fake?

It is irregular.

Then I am asking a different word. Are you saying that you want this Senate to conclude that this attribute – failing to put a page number on a bid document made it fake?

It made it irregular. 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.

The word you have used in the Motion is fake. We are trying the Motion.

No, but irregular.

Your Statement in the Motion that it was fake is not true; it is false.

Strictly, yes.

Thank you. Let me move to a fairly different limb of the argument. Let us go to the question of Olive Gardens Hotel. We have massive documents here – let us deal with the Affidavit of Mr. Peterson Jomo Muchira. According to Peterson Jomo Muchira, how did he acquire this property? How did his company acquire this property? The process of acquisition.

He says he entered into a secret arrangement with Hon. Rigathi Gachagua to purchase the property on the understanding that---

Who was purchasing the property?

That TM engineering.

The purchaser of the proper is TM engineering?

Yes.

Who is the registered proprietor of the property?

Let me confirm.

Who is the registered proprietor of the Olive Gardens Hotel property?

I am tracing the documents. Philip Wanjema Kago is the registered proprietor of Olive Gardens.

Kindly refer us to the volume and page you are looking at.

This is Volume 2(a), page 10 of 123.

Who is that?

Mr. Philip Wanjema Kago

I am asking, who is he? Do you know him?

No, I do not.

Let us look at your Affidavit of Jomo. First, do you concede that he says the Deputy President requested him to buy the property as a fact? Jomo is saying the Deputy President requested him to buy the property.

They entered into a secret arrangement.

Requested him to buy the property as a matter of fact?

Yes.

Did he buy the property?

Yes, on certain terms of secret arrangement, according to him.

The arrangement was that?

The Deputy President would buy the hotel by refunding-- -

Would you buy the hotel from him by refunding the money? Has he, in fact, bought it? You are the Motion Mover; you are here with us, and you will not run away from anything, Hon. Mutuse. Has he, in fact, bought it? 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.

I would imagine so.

When did he buy it?

I do not know.

You want these Senators to impeach this Deputy President in your imagination?

I have said that there is nothing wrong with not knowing. I do not know.

Does Mr. Peterson Jomo Mushira say that, in fact, the Deputy President has bought this hotel? Does he say so? That, in fact, the Deputy President has bought this hotel? Yes, or no? Does he say that the Deputy President has, in fact, bought this hotel? Yes, or no?

He says that the Deputy President would buy the hotel from him by refunding the purchase price of Kshs412 million set out in the agreement.

If we believe Mr. Jomo, this is a promise for a future transaction.

It would appear so.

No, on the face of it, it is a promise for a future transaction.

It would appear so.

Has that future come? Has that transaction happened to your knowledge?

I believe so.

What is the basis of your belief?

Your own response, the Deputy President’s response, you said---

Has the Deputy President said he has bought that property?

It was bought by TM engineering.

Is that not a fact? Is that what Jomo is telling us? What the Deputy President is telling us that it was bought by TM engineering and what Jomo is telling us that it was bought by TM engineering factually are the same. Then Jomo brings a new perspective to it, saying that the Deputy President promised him that in the future, he would buy back the hotel. Jomo is saying that when he bought the hotel, the Deputy President told him that he intends to buy it back in the future.

Yes.

By the way, is there any unlawfulness in a future intent to acquire property?

It points to a scheme to launder and hide the transaction.

Mr. Mutuse, let us be basic sensible people. If he wanted to, he would have bought it immediately. Is a promise to buy in the future evidence of a lack of immediate money?

Well, that is a matter of interpretation.

You are a lawyer like me and we are good at interpretation. In fact, we are trained in interpretation. I am asking you the question. Is the promise to buy in the future on the face of it--- 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.

Jomo says they have a secret. We do not want to assume what Jomo is saying. Mr. Jomo is saying in his affidavit that there was a secret arrangement that he covers from the Deputy President, buy the hotel and register it in his company then he refunds the money.

Has that refund been done?

He would be best placed to tell us.

When did Jomo buy this hotel? It is from the affidavit that it is from around March 2023. True or not true?

Around 31st March –

More than one and a half years ago. To date, your thorough investigation to support a Motion to remove the Deputy President from office has not revealed the evidence that the Deputy President has bought the hotel. Do you want us to imagine he has bought it?

My allegation is that he bought the hotel through a proxy, and he says that, indeed, he has a secret arrangement with the Deputy President to buy the hotel on his behalf as a proxy. I did not allege that it had been transferred to the Deputy President. I said it is an intricate web of economic crimes, white collar crimes that are secretive---

Is this promise to buy a hotel in the future a white-collar crime?

Indeed, economic crimes are white-collar crimes.

Is this promise to buy a hotel in the future a white-collar crime?

It is part of the scheme to hide the real owners of the property.

So, let me wind up this argument, because my time is running out. You have made hue and cry of the Deputy President wealth portfolio. At least you know that, is that true?

Indeed.

You have also told us that even if we gave him the best possible assumption, he would be having Kshs24 million in his account, because that is his salary.

The known sources of income.

Are you suggesting that the Deputy President assumed office impecunious as a pauper?

Not at all. However, I also---

What was his wealth portfolio by the time he became the Deputy President?

I have several lists.

Do you know his wealth portfolio by the time he became the Deputy President?

During the presidential debate?

Yes.

He did say that he was worth Kshs800 million shillings. 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.

How then do you question why he would promise in future to buy a property worth Kshs400 million?

I question why---

Do you know the formula he wanted to use to buy the property, whether it is liquidating his wealth or acquiring it? Do you know the formula he wanted to use in future to buy the property?

That would be for him to say not me.

I am asking whether you know. You are the one to establish this charge. Do you know the formula?

I have demonstrated that the formula is corrupt and the sources of the wealth are unexplained.

Which wealth has unexplained sources that you explained?

I have shown---

I thought you began by Vipingo, which we have dealt with you.

All the way from Nyeri, Tree Tops, all the way to ---

Sorry?

In terms of Vipingo, we will also be able to show.

When?

We still have time for submissions.

Oh, you are going to call more evidence?

No, we are not calling evidence. We will just point out to the other documents because we are reading documents in isolation. We will also show other documents that point out to his ownership of the Vipingo Hotel.

Mr. Speaker, Sir, may I invite my colleague, Mr. Macharia, to pick up from there?

Thank you, very much.

Thank you, too.

Would you wish to know how much time is remaining for you?

Yes, Mr. Speaker, Sir.

Okay, so far you have done one hour, two minutes. So, you have 58 minutes. For the entire cross-examination of this witness and those to come.

Most obliged. Hon. Mutuse, you say you are an Advocate of the High Court of Kenya.

Yes.

When were you admitted?

In the year 2018.

So, you have been practising for six years?

Indeed.

According to the Senate website I am reading here, between 2013 and 2022, you were the Chief of Staff at the county government of Machakos. Is that correct? 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.

That is correct.

So, from 2018 to 2022, you could not practise law as a public officer. Is that correct?

That is true.

So, you have not done any conveyancing transactions. Is that correct?

That is not correct.

How have you done conveyancing transactions as a public officer?

I have academic, professional, and experience in conveyancing.

Academic, not practical.

Professional and practical experience in conveyancing.

How did you do conveyancing while working for Machakos County Government?

I was not in private practice, but I am involved in many.

Yes, name one transaction, for example.

Well, maybe I cannot remember now.

Maybe what?

I cannot remember at the moment.

You cannot remember a single transaction in your illustrious law career you have done. Let us move on. On what party were you elected when you came to Parliament?

Maendeleo Chap Chap Party.

Were you elected in the year 2022.

Indeed.

Is it correct to say that Mandeleo Chap Chap Party is a member of the Kenya-Kwanza Coalition?

Yes, it is correct.

Did you sign a coalition agreement to form part of that Kenya-Kwanza Coalition?

Yes, we did.

Do you have any specific role in Mandeleo Chap Chap Party?

No, I do not have.

I want us to deal with grounds, I believe your counsel led you on what he said jointly were grounds one, five and six. They deal with the utterances you stated. Let me get some facts straight from you. You said one of the things that affects you the most about these utterances, you mentioned sensationally Rwanda, Sudan and various countries having problems. Is that correct?

Yes, indeed.

You said that my client, the Deputy President, was a District Officer (DO) in Molo during the clashes?

I said, it is said that he was a D.O. in Molo. 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.

So, this is not a fact? Yes, or no? It is not correct that he was not a D.O. in Molo?

I do not know it out of my own information, but it is public information.

What do you mean by public information? Either he was a D.O. or he was not. Can you confirm yes, or no? Was he or he was not? Or you do not know?

He was a D.O.

No, Molo, please, let us not waste time. Was he a D.O. in Molo or was he not, to your knowledge?

It is publicly alleged that he was a D.O. in Molo.

To your knowledge, not to the public. To you, Mutuse M.P. Kibwezi, was he a D.O. in Molo or not, to your knowledge?

I believe so.

I am not asking for your belief or imagination. Do you know or do you not know?

I do not have it as a matter of fact.

Okay, let us move. Now, you confirm that you are a member of the Kenya-Kwanza Coalition?

Yes, indeed.

Please go with me, if you will to page 417 of Volume 3 of the Deputy President's documents. As you put a finger there, Hon. Mutuse and Hon. Senators, if you will go with me to page six of Volume 1 this is the Special Motion.

Volume 6?

I said page 417. Keep a finger there, page 417 of Volume 3. These are annexures in support of His Excellency the Deputy President. Then volume one, which is your Motion, at page six of 85. Let us begin with page six of 85. Are you there on page six?

Yes, I am there.

This is the allegation you see in the middle there and I will read for you quickly so that we do not get stuck. Which begins with the words, a government is like a company. Can you say that?

A government is like a company.

I want you to show me where in that paragraph the word tribe, ethnic or k abila appears. Even once.

It is not there.

Go to page seven. Overleaf. Can you see the sentence beginning haiwezekani mtu ambaye alikuwa akikupiga kelele akichunga--- Can you say that?

Yes.

Show me where the word kabila, tribe, or ethnicity appears.

It is not there.

Paragraph 13. A government is like a company. Can you see that at page seven? 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.

Yes.

Show me where the word tribe, ethnic or kabila appears.

It is not there.

Let us go to page eight. Sisi lazima tungeangalia nyinyi. Hii

? Can you see that?

Yes, I can say that.

Show me where the word tribe, kabila, ethnic, appears.

It does not appear.

Paragraph 15, does it appear?

What?

At paragraph 15, at page eight of 85.

What does not appear?

The same words, kabila, ethnic, tribe.

No, they do not appear.

Finally, at paragraph 16, at page nine of 85. You can see that?

Let me read through. I can see nimekuwa nikichunga

Very good. So, is mlima a tribe?

It is a region.

Can you please name for me the counties in that region?

Several.

Central is not a county.

I have said that severally.

There are ten, actually. Read them out.

Kiambu, Murang’a, Nyeri, Embu, Tharaka Nithi, Meru, Nyandarua, Nakuru and Laikipia. Which other one?

All of them are 10. Now, do all those ten counties have one tribe to your knowledge?

Mr. Speaker, Sir, they do not have one tribe.

Thank you. Now, would you agree with me that the government, party or coalition that is the majority in the Senate and in the National Assembly is the Kenya Kwanza Coalition?

Yes, Mr. Speaker, Sir.

So, the ruling party is Kenya Kwanza?

The ruling coalition.

It is the ruling coalition?

Yes.

They rule because they are a majority. Do you agree with that?

Indeed.

Very good. If you go to page 417, to your knowledge, there is a letter. Can you see that? Page 417 of Volume 3 of the Deputy President's documents. Can you see that? 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.

Yes, Mr. Speaker, Sir.

It is addressed to the Office of the Registrar of Political Parties and it is signed by our professional colleague, Prof. Kithure Kindike. Can you see that? Counsel for Kenya Kwanza Alliance Coalition.

Yes.

You can see that?

Yes.

In the middle is a paragraph beginning with ‘subsequently’. Can you please read out for me the parties that were constituent parties of Kenya Kwanza?

Subsequently, on 12th April 2022, the following political parties were admitted and signed to join the coalition pursuant to Article 24 of the coalition agreement. Chama cha Kazi, Communist Party of Kenya (CPK), Devolution Party of Kenya (DEP), Economic Freedom Party (EFP), Farmers Party, The Service Party (TSP), Tujibebe Wakenya Party, Umoja na Maendeleo Party of Kenya (UMP), Democratic Party of Kenya (DP).

Thank you. The first of those coalition agreements is to be found on page 418. Can you see that?

Yes, I am there.

At the very top there, under the dates, who are the parties that have signed this agreement?

United Democratic Alliance Party, Amani National Congress (ANC) Party and Ford Kenya Party.

Thank you. On page 420, a few pages from there.

Page 420, I am there.

Article 5, paragraph C; Please read that out fairly quickly.

The validity or legality of this agreement may not be subject to challenge by any founding or future coalition member party or their respective individual party members before any organ of the coalition.

Paragraph d?

Any constitutional rules, regulations or guidelines, whatever the nomenclature of founding or future member parties which is not inconsistent with this agreement is null and void to the extent of the inconsistency.

This is the master agreement of the Kenya Kwanza coalition. Is that correct; yes, or no?

Mr. Speaker, Sir, it is correct.

Do you know why these agreements are signed and under what law they are signed?

Yes, I know.

Kindly tell us.

They are signed under the Political Parties Act for various reasons. Number one is---

No. I asked you the law. Do you know what specific section requires a coalition agreement and what is to enter into a coalition agreement? 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.

Well, not off the top of my head, but I know.

Schedule 3; does that ring a bell for you?

Schedule 3 states what the elements of a coalition agreement are.

As a member of the Kenya Kwanza coalition, according to you, are these agreements of your coalition drawn in accordance with the law?

Yes, they are.

So, they are lawful?

Yes, indeed.

They are enforceable?

Yes, indeed.

They are the basis upon which Kenya is governed?

Basis upon which Kenya Kwanza coalition is run.

Is governing the country?

The country is governed by the Constitution of Kenya.

Correct, but these are the constituent documents of the Kenya Kwanza government that is governing. This is the foundation of Kenya Kwanza.

However, they are not superior to the Constitution.

I did not ask for an argument. I asked, is this the foundational constitution? You just read about it saying that it is---

It is the coalition agreement for Kenya Kwanza, yes.

Would you know whether Maendeleo Chap Chap (MCC) Party signed any agreement to enter the Kenya Kwanza coalition?

Yes.

You did?

They signed.

Are you familiar with the contents of that agreement?

Yes, I am.

You are? Are you certain about that?

Yes, I know.

Very good. Then let us first go to the documents we were reading here. Let us begin at page 426.

I am there.

Article 19. Can you please read the heading?

Sharing?

Yes, sharing.

Can you read the heading for Article 20 again?

Sharing of leadership of parliamentary committees.

Sharing?

Yes, Mr. Speaker, Sir.

Let us go to Article 21.

Sharing of national government responsibilities. 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.

Let us start with (a) United Democratic Alliance (UDA) shall nominate the coalition's presidential and deputy presidential candidates in the general elections of 9th August 2022. Did UDA provide the President and Deputy President for the Kenya Kwanza coalition?

Yes.

They did?

Yes.

So that part of the agreement was implemented?

Yes, Mr. Speaker, Sir.

Article 21(e); the functions of the Deputy President is to chair committees, oversee implementation of cabinet decisions and so on. Would you know whether this particular section was implemented or not?

In terms of the functions of the Deputy President?

Yes. Would you know?

Yes, to the best of my recollection, it was put into effect through an executive order.

So that was also implemented.

Yes.

Page 428, can you see (F) at the top there?

Yes, I am there. Yes, I can see (F).

ANC shall nominate the Prime Cabinet Secretary for appointment by the President of the republic. Was the leader of ANC, nominated and appointed as the Prime Cabinet Secretary?

Indeed.

That is correct?

The Prime Cabinet Secretary and Cabinet Secretary for Foreign Affairs.

Can you confirm the name? What is the name?

His name is Hon. Musalia Mudavadi.

Were the functions you see at (J) and (I), also implemented?

Yes, they were implemented.

Let us go to page 429, paragraph (L) at the top. Ford Kenya shall nominate the Speaker of the National Assembly for election in accordance with the Constitution. Did Ford Kenya nominate and was the nominee in fact elected as the Speaker of the National Assembly?

Indeed.

That was also implemented?

Yes, Mr. Speaker, Sir.

Very good. Now, let us go to N. Please read out for us N.

ANC and Ford Kenya shall have 30 per cent share of the positions in the national Government, including Cabinet Secretaries, Principal Secretaries (PS), ambassadors, high commissioners, heads of diplomatic missions, chairpersons of state corporations, directors of state corporations and chairpersons and commissioners of 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.

constitutional commissions provided that the foreseen 30 per cent share positions in the national Government shall be shared equally between ANC and Ford Kenya.

Who would be the appointing authority for those positions?

Well, different office orders.

Remember you are a lawyer.

Some by the President, others by Cabinet Secretaries appointed by the President and others---

In fact, all these---

Others through Public Service Commission (PSC) by way of competitive---

Now, but ANC and Ford Kenya were promised 30 per cent share positions in all these positions. Is that correct?

Yes, indeed.

They have a 30 per cent share. So, when you hold shares, what are you called?

Okay, in a company, they are called shareholders. I do not know what they are called in a political party.

I am talking about the English language. When you hold shares, what are you called?

A shareholder.

Thank you. So, ANC and Ford Kenya are 30 per cent shareholders in Kenya Kwanza. Correct or not?

They are 30 per cent---

You have just told us when you hold shares, you are a shareholder. Please, Hon. Mutuse, do not fear, speak the English.

Okay. They are 30 per cent shareholders.

Thank you. Let us go to Article 22---

But not in a company.

Hon. Mutuse, please, answer the questions when asked. Let us go to Article 22.

My apologies.

Kindly read the paragraph that begins with pursuant.

It reads- “Pursuant to the principles of equity, national development, and fair allocation of national resources, the Kenya Kwanza Alliance Administration shall endeavour to fulfill the following development obligations in the Amani National Congress (ANC) and Ford Kenya strongholds of Western Kenya, within the electoral period starting 2022 and ending in 2077, on a priority basis.”

Stop there. Please tell me what are the ANC and Ford Kenya strongholds in Western Kenya? As a Member of the coalition, please tell us.

Come again?

What are the Ford Kenya and ANC strongholds in

Western Kenya?

Read for us the counties. 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.

you want counties?

Of course.

That would be the following counties- Bungoma, Kakamega, Vihiga--- Which other one?

I am the questioner and you are the Motion mover. Please answer.

Primarily those ones.

These are priority projects for one region, is that correct?

Yes.

This is a shareholder's agreement, is that correct?

This is a coalition agreement.

It says shares. You just told us that. Now, let us read the projects. Go to (a).

It reads: “Completion of all Existing Incomplete or Stalled Bitumen roads Projects within the aforesaid counties as at 9th August, 2022.”

Let us stop. These are projects for one region, is that correct?

Yes.

Would you say, as you have alleged here, that by Kenya Kwanza focusing on one region, certain projects, what you are accusing the Deputy President of saying must be implemented, how does that cause disunity or ethnic strife? As a member of Kenya Kwanza, you are a member and the ones who signed this. Tell us what you had in mind.

This is in promotion of regional inclusivity of all regions in the national development.

We are talking about Western here. Can you please show me in this document where other regions are mentioned, please go through it quietly. Take a minute. It starts at page 418; it starts at page 433. Show me one other region mentioned there by name in the whole document.

This is a coalition agreement.

Please, Mr. Mutuse, answer my question. Is there any other region mentioned by name in this document?

There is no other region.

Thank you, Mr. Mutuse. Please focus to my question. Is there any other region?

Not in this document.

Thank you. That was my simple question. Let us go to page 434. Who are the signatories to this agreement?

They are several.

Name them.

They are: William Ruto, Musalia Mudavadi, Moses Wetangula, Veronica Maina, Simon Gikuru and Chrisathanus Wamalwa.

Who has witnessed it? 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.

Prof. Kindiki.

Do any of these persons bear the blame as you pile on the Deputy President, for causing ethnic strife by focusing on one region in a document?

None of them has made pronouncements similar to---

They are in the document. This is an agreement, and it has been implemented.

None of them has a Motion on the impeachment.

Let me understand and be careful with the answer here. Your problem with the Deputy President is that he spoke out aloud what was written in the agreement that formed the government. Please answer, yes, or no?

There is no way I have---

Please answer yes or no, Mr. Mutuse?

The Deputy President has not said the people of Western have not been given---

No, he spoke about shares. We have read. He said everybody deserves their share. It is in the agreement. You have confirmed.

We have also to be faithful to the agreement.

We have to be faithful to an agreement that gives shares.

A coalition agreement.

However, we must not talk about it.

The Deputy President is not accused of saying the people of Western Kenya have not gotten their share.

Let us go back to your document, Mr. Mutuse. Go back to page 7 of Vol. 1.

Yes, we are there.

It says- “A government is like a company. I did not say it is a company. I said it is like a company.” In every company, there are shares, preferential shares and ordinary shares. When there is an AGM, non-shareholders do not vote or attend. When there are dividends to be divided, they are divided according to the number of shares. This is the truth. A government - and this is the government being formed here. So, Mr. Mutuse, are you saying that the problem is that the Deputy President spoke out aloud what was written in an agreement deposited with the registrar of political parties and which formed the government?

I am not saying that because there is nowhere in the coalition agreement we spoke about a company.

All right, let us move on. Let us go to the agreement at page 435. Can you see that?

Yes, I can see it.

What is this agreement? Who are the parties to this agreement? 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.

Kenya Kwanza Coalition and the Pamoja African Alliance (PAA) Party, otherwise abbreviated as PAA.

Let us go, if you do not mind, to page 438. Can you see Article 7?

Yes, I can see article 7.

Please read what it says.

It reads- “Priority Projects and Programmes: Upon winning the presidential election scheduled for 9th August 2022, the coalition administration shall ensure the following within the 2022-2027 development cycle.” Do I need to read all of it?

Let me make it short for you. Between article7 (a) and 7(i), I would like you to tell me whether any other region other than the coast region is mentioned in those priority projects. This is page 438 of Vol. 3.

Do you want me to take a minute to read?

No, just please flip through in a second. It should not be long. Let me help you---

There is none.

All of them deal with the coast region. Can you see that?

number (d) is broad. It says- “Involve local communities in the management, benefits sharing of the resources associated with the blue economy.”

Do you know what blue economy refers to?

Yes, I do.

Is there a blue economy in Makueni County?

There is a blue economy in Kisumu.

Very good. So, other than the (d), the rest of it is all coast region.

It says- “Reverse operational changes that have been carried out in the recent past, whose effect has been to relocate some of the core activities.” Basically, it is the coast region, but also with a national nature.

You can read for yourself. They are for coast region. Go with me to Article 8(a) at page 439. It says- “PAA shall nominate a candidate for the Speaker of the Senate.” Can you see that?

Yes, I can see that.

Did the candidate nominated by PAA, in fact, become the Hon. Speaker of the Senate?

He did.

Let us go to Article 9. Please read Article 9(a). 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.

It states- “Sharing of Responsibilities in the National Government Upon the coalition winning the presidency of the Republic of Kenya in the general election scheduled for 9th, PAA shall submit one qualified nominee for appointment as Principal Secretary in accordance with the applicable law and procedure for appointment.”

So, PAA was allocated one Principal Secretary position as its share of national Government. Is that correct?

According to this agreement, yes.

Thank you. Let us go to a very interesting one. Go to paragraph 9(c) and read it.

It reads- “PAA shall be entitled to nominate other qualified persons for appointment for positions in the national Government, including Principal Secretaries, Ambassadors/High, Commissioners, Chairpersons of State Corporations, Chairpersons of Constitutional Commissions, and other appointive officers commensurate with the number of Members of National Assembly and Senators that will be elected on PAA ticket, vis-a-vis the total number of elected members under the ticket of other coalition constituent parties.”

In simple English, when the number of national Government positions for Principal Secretaries (PSs), ambassadors, state corporations etcetera, including constitutional commissions and other appointing offices will be allocated to Pamoja African Alliance (PAA) commensurate with the number of Members of National Assembly and Senators, does that not mean that PAA will be allocated positions based on how well it does in the elections, yes or no?

Yes.

Let us go to page 440 again and 441. Can you see that?

Yes, I can.

Again, you can see it is signed by the party officials. Can you see that?

Yes, I can.

His Excellency the President, the Prime Cabinet Secretary, the hon. Member of the National Assembly, my villagemate, Sen. Veronica Maina, Simon Gikuru, Chrisanthus Wamalwa, Ibrahim Mutwafi and Benedict Furaha. Can you see that?

Yes, I can.

Do you confirm that this is an agreement of the Kenya Kwanza Coalition?

Yes, between Kenya Kwanza Alliance and PAA.

Mr. Speaker, Sir, I would like to play a video. This is Video No.7 in the Deputy President’s documents.

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.

Hon. Mutuse, who was speaking in that video?

The President of the Republic of Kenya, Hon. William Ruto.

Which words did he use? What did he say to the people of Murang’a?

He has appointed many of the locals into his Government.

Did he say; “ Nyinyi watu wa Murang’a ni shareholders wakubwa wa hii Serikali?”

Yes, he did.

What among other things is one of the primary duties of the Deputy President?

To deputize the President.

To assist the President.

Yes.

When the Deputy President assists the President in talking about shareholders, how does that become an impeachable offence that does not attach to his principle, the President?

That is not one of the functions assigned to the President by the Constitution.

It is one of the functions in your founding documents. So, he is assisting him in that function. It is politics. What is the problem with that? He is the Deputy Party Leader of the United Democratic Alliance (UDA).

Well, I would not know that.

Let me ask you. Before you filed this Motion of yours, which my colleague Elisha Ongoya called false and used some other words.

I can remember them.

You can remember them?

Yes.

Now that you know what you have done, what are they?

I can remember Ongoya’s words.

What are they? Describe it yourself. Which words did he use?

Go ahead. You can ask him for assistance.

When you say that the Deputy President used words in support of something the President himself said, how does that become insubordination?

I have not said that the Deputy President used words in support of what the President said.

So, when the President says to the people of Murang’a and not to the people of, say, Makueni, that “ Nyinyi ni shareholders wakubwa wa Serikali ”, are the President’s words likely to incite ethnic hatred and violence? Are the President’s words likely to turn us to Rwanda as you suggested?

The President is not on trial.

I see. So, his assistant, who assisted him do the thing--- 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.

Counsel for the Deputy President, you have 30 minutes.

I am most obliged, Mr. Speaker, Sir. Mr. Mutuse, by assisting the President in something the President said, signed and effected in most of the appointments--- Would you confirm that most of these appointments, for example, PSs, were made by the President?

Yes, indeed.

Cabinet Secretaries were appointed by the President?

Yes, indeed.

In fact, under the Constitution, does the Deputy President have any power to appoint anybody?

Not expressly.

No. If it is by insinuation, tell me where? What law are you talking about?

The President can sign an instrument for him to deputise; by way of signing an instrument of appointment.

Sorry?

Maybe the President can delegate some power of appointment.

Are you aware of any power delegated in this Government?

I am not.

Is there any you know of? You are not aware of any?

No.

Okay. One of the other allegations is that the Deputy President in these utterances, thereby ensured that other regions did not have adequate development. Is that correct?

They have the potential to discriminate.

Potential?

To discriminate.

Let me ask you something. This is a question not just about this allegation, but about the companies and all the things you have said here.

Yes.

Before you filed your Motion, did you write to the Deputy President to ask him to explain himself?

I was not under obligation to do so. So, I did not.

I want you to go with me to page 431.

Page 431 of which volume?

Volume 1, the same volume we are reading here.

I am on page 431.

Can you see Article 26?

Yes.

It deals with dispute resolution. Does Kenya Kwanza Alliance have a dispute resolution mechanism?

I believe so. 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.

Did you attempt to invoke that mechanism?

This is not a coalition dispute.

Okay. I am asking this question because I asked you whether you asked the Deputy President why he said any of these things or whether he was acting on presidential instructions. Did you ask?

I did not.

You did not ask him?

I did not.

Did you ask him about these companies you are saying what he does with them?

I did not.

You did not. Did you ask him about these companies and parcels of land? Did you invoke Article 35 rights to find out the truth?

I did not.

So, you just jumped straight into these allegations with a Motion that has animated the whole country with rumours?

There is no requirement for me to write to the Deputy President to ask for any clarification.

Let me get this right. You are saying there was no obligation for you to verify the facts before filing the Motion?

I verified them with the necessary organs of the state.

What are the necessary organs of the state you verified them with?

Registration of companies liable to verify ownership with the business registration services and others.

Alright. Let us go to another area. I want you to go with me to page 497 of Volume 3. Are you there with me?

Yes, I am.

Can you read at the top there what it is called?

North Eastern Development Initiative (NEDI) Mission Aid; 27th March to 6th April, 2023.

As far as you are aware, does the Deputy President come from North Eastern Kenya?

No, he does not.

If you go with me, you can see this is about frameworks for how that area will be developed. I want you to go with me to pages 500 and 501. Can you can see that?

Yes.

You can see there are 28 programmes that were being undertaken. Can you see that?

Yes, I can.

Go with me then to pages 502 and 503.

A list of participants.

You can say that? 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.

Yes.

The top 10 participants are from which office?

Office of the Deputy President.

There are also many other leaders of Kenya there. Can you see that in page 502 and 503?

I can see they are people from different communities.

You can see that?

Yes.

I want you now to go with me to page 505. Can you see Annex (2) at the top there?

Active needy projects data.

You can see that?

Yes.

It lists a name and then it has World Bank funding financing US$ million. Can you see that?

Yes, I can.

Can you see the needy share in US dollars?

Yes.

If you could get your assistant as I lead you in another area to the totals and confirm that the total for the World Bank funding is US$3.8 billion. The total World Bank funding for the country. Okay? Your assistant there can help you with a computer which is Kshs514 billion. Okay: The needy share being supervised by the Deputy President in that column, he can confirm as we go on over something else, is 1.99 billion dollars. The percentage of dollars allocated to the needy area is 52 per cent of the national figure. Would you say that is marginalization by the Deputy President’s Office?

This is not a programme by the Deputy President. It is a programme by the Government of Kenya.

Fantastic, you raise a very important point. You know Government has no money. Government has tax payers’ money.

Indeed.

The question is how it uses it. It borrows money and taxes.

Yes.

his programme is run by the Deputy President’s Office. So, all I am asking is, is a programme run by the Deputy President where 52 per cent does not go to the region he comes, is that likely to cause ethnic hatred? Is that discrimination? That is my question to you.

No, it is not.

Thank you very much. Go with me now to another area, page 410. Hon. Mutuse, you have said that the Deputy President acted beneath his office and violated his oath of office by criticizing the Director General of NIS in public.

Yes.

You say that is a terrible thing?

Yes.

It is the worst thing that a Deputy President can do? 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.

Yes.

Okay. Now, if you go with me to the constitutional provisions that deal with security, I believe that is Article 238. Please, read if you will, Article 239. Do you have the Constitution there with you?

I do not have at the moment.

I will lend you mind. Please read Article 239(3)

Article 239(3) National Security Organs - “In performing their functions and exercising their powers, the national security organs and every member of the national security organs shall not— (a) act in a partisan manner;

(b) further any interest of a political party or cause; or (c) prejudice a political interest or political cause that is legitimate under this Constitution.”