Tuesday, 12th March, 2024

Clerk, do we have quorum?

Then, kindly proceed to call the first Order.

AND WHEREAS on Tuesday, 5th March, 2024, the National Assembly considered and rejected the Bill, thereby committing it to a Mediation Committee, pursuant to Article 112(1)(a) of the Constitution;

NOW THEREFORE, in accordance with the provisions of Article 112 of the Constitution and Standing Orders No.149 of the National Assembly Standing Orders, I hereby convey the said decision of the National Assembly to the Senate and seek the appointment of Senators to the Mediation Committee on the said Bill.

Hon. Senators, consequent to the said decision, the Speaker of the National Assembly appointed the following Members of the National Assembly to the Mediation Committee to consider the Bill in accordance with Article 113 of the Constitution-

Hon. Senators, take your seats. Kindly be orderly.

Proceed, Majority Leader.

Mr. Speaker, Sir, I beg to lay the following Papers on the Table of the Senate, today, Tuesday, 12th March, 2024-

Report of the Auditor-General on Financial Statements of Kericho County Alcoholic Drinks Control Fund for the year ended 30th June, 2023.

Report of the Auditor-General on Financial Statements of Kajiado County Youth and Women Enterprise Fund for the year ended 30th June, 2023.

Report of the Auditor-General on Financial Statements of the County Government of Marsabit Mortgage Scheme Fund for the year ended 30th June, 2023.

Report of the Auditor-General on Financial Statements of Municipality of Malindi for the year ended 30th June, 2023.

Report of the Auditor-General on Financial Statements of Ol Kalou Municipality for the year ended 30th June, 2023.

Report of the Auditor-General on Financial Statements of Baringo County Lake Bogoria Community Grant for the year ended 30th June, 2023.

Report of the Auditor-General on Financial Statements of Baringo County Co- operative Development Fund for the year ended 30th June, 2023.

Report of the Auditor-General on Financial Statements of Narok County Assembly Car Loans, Grants and Mortgages Scheme Fund for the year ended 30th June,

The Chairperson Standing Committee on Labour and Social Welfare or any Member of that Committee?

Mr. Speaker, Sir, on behalf of the Chairperson of the Standing Committee on Labour and Social Welfare, I beg to lay the following Paper on the Table of the Senate, today, 12th March, 2024-

Report of the Standing Committee on Labour and Social Welfare on its consideration of the Public Service

(Amendment)

Bill

(National Assembly Bills No. 46 of 2022)

.

Next Order.

Proceed, Sen. Crystal Asige.

Be patient with her as she walks in.

Pardon me, Mr. Speaker, Sir. I beg to give notice of the following Motion- THAT, AWARE THAT Kenyans have a right to a clean and healthy environment pursuant to Article 42 of the Constitution;

NOTING THAT the National Climate Change Action Plan (NCCAP) identifies transportation as the fourth largest contributor to greenhouse gas emissions, which if uncontrolled, will result to the negative impact of climate change with adverse effects to millions of Kenyans;

CONCERNED THAT the number of private vehicles has significantly grown, leading to increased road accidents, carbon emission and vehicle congestion, costs of which are in excess of Kshs100 billion in Gross Domestic Plan (GDP) per year;

NOW THEREFORE the Senate urges the Ministry of Roads and Transport, Ministry of Environment, Climate Change and Forestry, in collaboration with the Council of Governors and the National Climate Change Council to-

Mr. Speaker, Sir, I rise pursuant to Standing Order No.53 (1) to seek a Statement from Standing Committee on Devolution and Intergovernmental Relations regarding boundary disputes between Kwale and Kilifi counties.

In the Statement, the committee should-

Proceed, Sen. Sifuna.

Mr. Speaker, Sir, for the record, I am holding brief for Sen. Oketch Gicheru of Migori.

Mr. Speaker, Sir, I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on National Security, Defence and Foreign Relations regarding the use of unnecessary and excessive force by the police during the peaceful procession by the Kenya Medical---

Order, hon. Senators. The Senator for Nandi, can you not locate your seat? It is somewhere here.

Mr. Speaker, Sir, allow me to begin from the top. I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on National Security, Defence and Foreign Relations regarding the use of unnecessary and excessive force by the police during the peaceful procession by the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) on Thursday, 29th February, 2024.

In the Statement, the Committee should-

Next is Sen. Veronica Maina. Sen. Veronica Maina: Thank you, Mr. Speaker, Sir, for this opportunity. I have two Statements and I believe I can read both of them.

Mr. Speaker, Sir, I rise pursuant to Standing Order No.53

(1)

to seek a Statement from the Standing Committee on Energy regarding the effects of the proposed energy

regulations by the Energy and Petroleum Regulatory Authority

(EPRA)

on the electricity sector in the country.

In the Statement, the Committee should-

Sen. Veronica Maina, your colleagues cannot hear you. Just use the other microphone.

Mr. Speaker, Sir, I rise pursuant to Standing Order No.53

(1)

to seek a Statement from the Standing Committee on Energy regarding the effects of the proposed energy

regulations by the Energy and Petroleum Regulatory Authority

(EPRA)

on the electricity sector in the country.

In the Statement, the Committee should-

Mr. Speaker, Sir, I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Roads, Transportation and Housing regarding the efficiency and competitiveness of the Port of Mombasa.

In the Statement, the Committee should-

Order, Sen. M. Kajwang'. I have been watching you keenly. Now you are on the sixth minute just exchanging greetings. Kindly make use of the Lounge because it has no Standing Orders.

Proceed, Sen. Veronica Maina.

In the Statement, the Committee should-

The next one is by Sen. Wafula.

Mr. Speaker, Sir, I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Labour and Social Welfare regarding the policies governing confirmation of appointment in public service after probation period.

In the Statement, the Committee should-

Order, hon. Senators! Sen. Miraj and Sen. Nyamu, you may consult, but keep it in low tones

The third question is as follows-

Sen. Sifuna, you have the Floor.

Mr. Speaker, Sir, I have two Statements. With your kind permission, I request that I take both of them.

First, I rise, pursuant to Standing Order No.53 (1) , to seek a Statement from the Standing Committee on Education regarding the exclusion of Alternative Provision of Basic Education and Training Institutions, formerly known as (APBET) institutions, from the education framework.

In the Statement, the Committee should -

Thank you, Mr Speaker, Sir. Secondly, I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Roads, Transportation and Housing on the ownership of Kariokor Estate in Starehe Constituency, Nairobi County.

In the Statement, the Committee should -

Sen. (Prof.) Tom Ojienda Odhiambo, SC. That Statement is dropped.

Sen. Esther Okenyuri, you may proceed.

Mr. Speaker, Sir, I rise pursuant to Standing Order No.53 (1) , to seek a Statement from the Standing Committee on Trade, Industrialization and Tourism regarding the disbursement of UWEZO of fund by the Ministry of Cooperatives and Micro, Small and Medium Enterprises (MSMEs) , development.

In the Statement, the Committee should -

Se. Munyi Mundigi, you have the Floor.

Thank you, Mr. Speaker, Sir. I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Education concerning the state of Early Childhood Development Education, (ECDE) teachers training in the country.

In the Statement, the Committee should-

Sen. Fatuma Dullo, you have the Floor. That Statement is dropped.

Sen. Osotsi, you may proceed.

Mr. Speaker, Sir, I rise, pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Devolution and Intergovernmental Relations regarding the conditions of markets within Vihiga County.

In the Statement, the Committee should-

Senator for Nandi County, proceed. Sen. Tabitha Keroche is certainly not the Senator for Nandi County.

Mr. Speaker, Sir, the Senator of Nakuru County is confusing me.

by Athletics Kenya (AK) to identify and select officials and team representing Kenya in the upcoming 13th Edition of the Africa Games in Accra, Ghana.

In the Statement, the Committee should-

Proceed, Sen. Kinyua.

Mr. Speaker, Sir, I rise, pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Land, Environment and Natural Resources on the status of the processing of land ownership documents for residents of Nanyuki and Makutano/Ngobit Wards in Laikipia County.

In the Statement, the Committee should-

Proceed, Sen. Tabitha Keroche.

Mr. Speaker, Sir, I rise, pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Land, Environment and Natural Resources regarding the status and reason for eviction of 140,000 people living in Ndabibi-Maela Ward Naivasha Sub-County.

In the Statement, the Committee should-

Thank you, Mr. Speaker, Sir. I rise, pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Information Communication and Technology on the increased number of dropped calls on the mobile network telecommunications service provider, Safaricom.

In the Statement, the Committee should-

Thank you, Mr. Speaker, Sir. I rise, pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on National Security, Defence and Foreign Relations regarding the resettlement of Internally Displaced Persons (IDPs) from Saku Constituency in Marsabit County.

In the Statement, the Committee should-

Thank you, Mr. Speaker, Sir. I rise pursuant to Standing Order No.53 (1) to seek a Statement from the Standing Committee on Education regarding the status of infrastructure projects undertaken by all county governments in the education sector.

In the Statement, the Committee should-

There was a Statement that was supposed to be made pursuant to Standing Order No.52. Although we have passed requests under this Standing Order, I will allow Sen. Omogeni to issue the Statement due to its importance.

Mr. Speaker, Sir, I rise pursuant to Standing Order No.52 (1) to make a Statement on a matter of general topical concern namely, the operating expenses of the county offices.

I take this opportunity to inform the House of the progress made in the disbursement of funds to county offices by the Parliamentary Service Commission (PSC) . I do this appreciating my duty to this House, which approved my appointment as a Commissioner to the PSC on Wednesday, 9th November, 2022.

I wish to notify the House that the PSC as at Thursday 7th March, 2023, received and processed operational returns from 39 county offices. The Commission proceeded to process payments for the offices for their office operations for January to March, 2024.

I wish to notify hon. Senators that the vouchers for payments of the disbursements for the mentioned quarter are in the cash office pending payment.

Mr. Speaker, Sir, I wish to bring to the attention of the House that we requested for Exchequer from the National Treasury, but as of 7th March 2024, we have not been funded. As an interim measure, the Commission has facilitated the payment of staff salaries for the period of January and February, 2024.

I, therefore, wish to bring to the attention of all Senators that though they are required to account for their office expenses for January, February, and March 2024, we have been unable to disburse these monies to the respective accounts due to the Exchequer not being released by the National Treasury.

I, therefore, request Senators to take note for general information and not to confront me on the corridors as to why money has not reached their accounts.

I thank you.

I will allow comments on these Statements, two Senators from each side.

Sen. Wambua, proceed.

Thank you, Mr. Speaker, Sir, for this opportunity. I thank Commissioner, Sen. Omogeni, for updating the House on the status of the release of funds, especially for operations of our respective county offices.

Mr. Speaker, Sir, we are now beginning to play hide and seek with the electorate and even our members of staff. This is because the funds that Sen. Omogeni has made reference to for the operations, Senators will use for tea in their offices and for hiring taxis to different destinations.

The amount of debt that has been accumulated by the respective offices of Senators are staggering. Since January, that amount has not been received in our counties. It puts us in a very awkward situation. We require other Government offices to operate and deliver services, but we are unable to operationalize our own offices.

Mr. Speaker, Sir, this is a matter that the National Treasury must begin to take more seriously than they do. Disbursements to different votes for Parliament should not be an afterthought. It should be a priority issue. Moreover, monies that were due in January have not been released to date and there is no sign that it will be released tomorrow or the day after. Therefore, the National Treasury must take note.

I thank the Parliamentary Service Commission (PSC) for that update.

Proceed, Sen. (Dr.) Khalwale.

Thank you, Mr. Speaker, Sir. I have heard our good Commissioner. As a House, we have absolute confidence in them. I want to encourage them. The PSC must realize that under Article 248 and 249 of the Constitution, it enjoys absolute independence. In fact, if you allow, I would like to quote Article 249 (2) (a) and

Hon. Senators, the contribution by the two hon. Senators should sum it all.

Before I ask the Clerk to call the next Order, I have got this Communication to make.

Thank you, Mr. Speaker, Sir, for giving me the opportunity to welcome students from Kitengela Magereza Secondary School to the Senate. I am

delighted to see the students here at the Senate. I hope the visit motivates them to go and work hard, study and be the future Senators and Members of Parliament (MPs) in this country. Additionally, they can become Presidents and all other professions.

Mr. Speaker, Sir, it delights me particularly because I built this school when I was a MP from ground zero to what it is today.

Next Order, Clerk. Clerk, just have a seat. Before we start some war in Kajiado County, I will allow Sen. Seki, under one minute, to extend a welcome to the visiting delegation.

Thank you, Mr. Speaker, Sir. I thought you forgot that I am an elected Senator.

Proceed, Sen. Seki. Of course, you are the elected Senator for Kajiado.

Thank you, Mr. Speaker, Sir. I take this opportunity to also welcome the students from Kitengela Magereza Mixed Secondary School, together with the teachers, on behalf of the Senate.

I am the Senator for Kajiado. I appreciate you coming here today to learn from this Senate. I also thank Sen. Tobiko for being a pillar of our county, particularly Kajiado East and for establishing this school in 2017. We can now the see the fruits by you being here.

As you go back home, you would have learned quite a lot. I thank you.

Next Order, Clerk.

I beg to move and request the Senate Minority Leader, Sen. Madzayo, to second. I thank you, Mr. Speaker, Sir.

Thank you, Mr. Speaker, Sir. I second the Motion.

Hon. Senators, kindly, take your seats. Hon. Senators, I now proceed to propose the question.

Hon. Senators, this being a Procedural Motion, you may elect to debate this Motion or allow me to put the question so that we vote.

Put the Question!

Very well. With your concurrence, hon. Senators, I will proceed thus.

It is my determination that this matter, being a Procedural Motion, does not concern or affect counties. Therefore, hon. Senators, I shall proceed to put the question and voting shall be by voice.

Next Order.

Hon. Senators, allow me to invoke Standing Order No.45(2) for the convenience of the House to rearrange today's Order Paper. We will skip Order No.9 and move straight away to Order No.10.

Clerk, can you proceed to call Order No.10?

Mr. Temporary Chairperson, I am proposing an amendment to Clause 3 that seeks to delete the words “institutional housing” appearing immediately after the words “affordable housing” in paragraph (b) .

The justification is, if you look at the definition of institutional housing projects, this relates to building houses for prisons and universities and is not within the rights envisaged under Article 43 of the Constitution.

Thank you. The Temporary Chairperson

: Thank you, Senator. When you are moving the amendment, just state that you propose the amendment as it appears on the Order Paper.

Mr. Temporary Chairperson, I beg to move- THAT Clause 3 of the Bill be amended in sub-clause (1) —

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 4 of the Bill be amended by deleting sub-clause (2) and substituting therefor the following new sub-clause—

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 5 of the Bill be amended in subsection (2) by deleting the words “business or company which” and substituting therefor the words “person who”.

The justification is that this amendment seeks to capture all legal persons and not just businesses or companies. This amendment will ensure equity in application of the exemption.

The Temporary Chairperson

: Division will be at the end. Clause 6

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 6 of the Bill be amended—

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 7 of the Bill be deleted and substituted with the following new clause– Default on

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 9 of the Bill be amended –

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 10 of the Bill be amended—

Mr. Temporary Chairman, Sir, the justification is to remove institutional housing projects from entities that will benefit from affordable housing.

The Temporary Chairperson

: Division will be at the end.

There is a further amendment to Clause 10 by the Chairperson of the Standing Committee or Roads, Transportation and Housing.

Temporary Chairman, Sir, I beg to move- THAT Clause 10 of the Bill be amended-

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 11 be amended

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 11 (4) of the Bill be amended—

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 12 of the Bill be amended in sub-clause (3) by deleting the words “National Assembly” and substituting therefor the word “Parliament”.

The justification; this amendment seeks to ensure that the investment plan is tabled before both Houses of Parliament. This will ensure that the Senate as the protector of counties and their governments is apprised of the five-year affordable housing investment program.

The Temporary Chairperson

: Division will be at the end. Clause 13

The Temporary Chairperson

: We have two amendments, one is by Sen. Omogeni and the other by the Committee. If Sen. Omogeni’s amendment is carried, the Committee’s amendment will be dropped.

Proceed, Sen. Omogeni.

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 13 be amended as in sub-clause (3) by deleting the words “the National Assembly for approval before disbursing funds out of the Fund” and substituting therefor the word “Parliament”.

The justification is that the proposed Bill creates a Board that should be in charge of dealing with investment programmes on all housing projects in counties. This will be

in conflict with the Sixth Schedule, Part II, Section 8 of the Constitution that reserves housing and development as a function of counties.

The amendment proposes, therefore, that this function be undertaken by each county, which shall submit annual investment programmes to the Senate and not to the National Assembly. Further, it proposes that each county will submit their annual investment programmes to the Senate.

Thank you, Mr. Temporary Speaker, Sir. (Question of the amendment proposed) The Temporary Chairperson (Sen. Abdul Haji): Division at the end. Chairperson, Standing Committee on Roads, Transport and Housing.

Mr. Temporary Chairman, Sir, I beg to move- THAT clause 13 of the Bill be amended in sub-clause (3) by deleting the words “the National Assembly for approval before disbursing funds out of the Fund” and substituting therefor the word “Parliament”.

This amendment seeks to ensure that the annual investment programme is tabled before both Houses of Parliament. This will ensure that the Senate as the protector of counties and their governments is apprised of the annual investment program.

The Temporary Chairperson

: Division at the end. Clause 14

The Temporary Chairperson

: We have two amendments on this. One by Sen. Omogeni and the other one by the Committee and the amendments are not in conflict.

Proceed, Chairperson, Standing Committee on Roads, Transport and Housing.

Thank you, Mr. Temporary Chairman, Sir. This is just correction of grammar.

I beg to move- THAT clause 14 of the Bill be amended in sub-clause (3) —

Mr. Temporary Chairman, Sir, I beg to move- THAT clause 14 of the Bill be amended—

Mr. Temporary Chairman, Sir, I beg to move - THAT Clause 15 of the Bill be amended—

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 15 of the Bill be amended by inserting the following new paragraph immediately after paragraph (d) — (da) inspect and enforce compliance to this Act, guidelines and regulations set under the Act.

The justification is that this amendment seeks to empower the Board to inspect developments funded by the Fund and enforce compliance with the Act.

The Temporary Chairperson

: Division at the end. Clause 16

The Temporary Chairperson

: Chairperson, Standing Committee on Roads, Transport and Housing.

Thank you, Mr. Temporary Chairman, Sir, I beg to move- THAT clause 16 of the Bill be amended—

Thank you, Mr. Temporary Chairman, Sir, I beg to move: THAT clause 17 of the Bill be amended—

Mr. Temporary Chairman, Sir, I beg to move- THAT Clause 18 of the Bill be amended by deleting the words “other than an ex- officio member” appearing immediately after the word “member”.

The justification is that this amendment seeks to remove reference to the Chief Executive Officer in provisions that relate to the filling of a vacancy that arises in the Board.

The Temporary Chairperson

: Division will be at the end. Clause 19

The Temporary Chairperson

: Chairperson, Standing Committee on Roads, Transport and Housing, proceed.

I beg to move the amendment- THAT Clause 19 of the Bill be amended in sub-clause (1) by inserting the word “First” immediately after the words “accordance with the”

The justification is that this amendment seeks to clarify, which amongst the three Schedules, the Section is referring to.

(Question of the amendment proposed) Clauses 20, 21 and 22

(Question, that Clauses 20, 21 and 22 be part of the Bill, proposed) Division will be at the end. Clause 23

The Temporary Chairperson (Sen. Abdul Haji): Chairperson, Standing Committee on Roads, Transport and Housing.

Thank you, Mr. Temporary Chairman, Sir. I wish to move the amendment-

THAT clause 23 of the Bill be amended—

Mr. Temporary Chairman, Sir, I beg to move- THAT the Bill be amended by deleting Clause 32 and substituting therefor the following new section–

Allocation of

land. No. 6 of 2012

Mr. Temporary Chairman, Sir, I had moved an amendment that was doing away with institutional housing. However, the amendment by Sen. Abass is retaining institutional housing, which I proposed to be deleted. I want your directions.

Sen. Abass, would you want drop the institutional housing scheme in your amendment to Clause 32 (1) ?

Mr. Chairman, Sir, I will not drop it.

Division at the end. Clause 33

The Temporary Chairperson

: Proceed, Chairperson Standing Committee on Roads, Transportation and Housing.

Thank you, very much, Mr. Temporary Chairperson. I beg to move-

THAT Clause 33 of the Bill be amended–

Mr. Speaker, Sir, I beg to move- THAT Clause 34 of the Bill be deleted. The justification is to remove institutional development as beneficiaries of affordable housing.

Thank you.

The Temporary Chairperson

: Division at the end. There is a further amendment by the Chairperson of the Committee. Proceed,

Mr. Temporary Chairperson. I beg to move- THAT Clause 34 of the Bill be amended by deleting the word “Fund” and substituting therefor “Board”.

Justification is that this amendment seeks to clarify that it is the Board that is empowered to enter into contracts on behalf of the Fund.

The Temporary Chairperson

: Division at the end. Clause 35

The Temporary Chairperson

: We have two amendments. The Committee will have to drop their amendment if Sen. Abass’s amendment goes through.

Mr. Temporary Chairperson, I beg to move– THAT the Bill be amended by deleting clause 35 and substituting therefor the following new clause — Agreement with private institutions and persons.

Mr. Temporary Chairperson, Sir. I beg to move- THAT Clause 35 of the Bill be amended by deleting the word “Fund” and substituting therefor the word “Board”.

Justification is that this amendment seeks to clarify that it is the board that is empowered t enter into contract on behalf of the fund.

The Temporary Chairperson

: Division at the end. Clause 36

I beg to move- THAT Clause 36 of the Bill be amended in Sub-clause (1) by deleting the word “Fund” and substituting therefore the word “Board”.

Justification is the same as the previous one.

The Temporary Chairperson

: Division at the end. Clause 37

The Temporary Chairperson (Sen. Abdul Haji): Division at the end. Clause 38

The proposed amendment by Sen. Abass will be dropped if the Committee’s amendment will go through.

The Temporary Chairperson, Sir, if you could give me one minute to consult with Sen. Abass.

Mr. Temporary Chairperson, Sir, maybe Sen. Abass could go first before I move my amendment.

Mr. Temporary Chairperson, Sir, having compared notes, we found that these things are the same for the Chairperson and myself. Therefore, I drop mine.

The Temporary Chairperson

: Sen. Abass, say that you withdraw yours.

I withdraw my amendment.

The Temporary Chairperson

: Very well. Chairperson, move the amendment, please.

Thank you, very much. We consulted very fast on that one. The Temporary Chairperson, Sir, I beg to move:-

THAT, Clause 38 of the Bill be deleted and substituted with the following new clause- Eligibility

Mr. Temporary Chairperson, Sir, I beg to move- THAT, Clause 39 of the Bill be amended in sub clause (1) by deleting the word “Section 30” and substituting therefor the words “Section 38”.

This amendment seeks to correct a cross-referencing error.

The Temporary Chairperson

: Division will be at the end. There is a further amendment by Sen. Abass. Proceed.

Mr. Temporary Chairperson, Sir, I think there was confusion. Clause 39 is withdrawn.

Clause 40

Mr. Temporary Chairperson, Sir, I beg to move-

THAT Clause 40 of the Bill be amended by-

Mr. Temporary Chairperson, Sir, I beg to move- THAT Clause 41 of the Bill be amended by deleting the words “where applicable”

In consideration of our Muslim brothers and sisters, I wish to withdraw that amendment.

The Temporary Chairperson

: Chairperson, for the record, could you state that you are withdrawing Clause 41.

(Proposed amendment to Clause 41 by Sen. Thang’wa withdrawn)

Mr. Temporary Chairperson, Sir, I wish to withdraw Clause 41 that we were amending by deleting “where applicable” for the sake of our Muslim brothers and sisters.

On a point of order Mr. Temporary Chairperson, Sir. I want some clarity on how he withdrew a clause. I thought he should be proposing to delete the Clause. Let him put it clearly so that we get it properly.

The Temporary Chairperson

: I will make the clarification, Sen. Sifuna. Now the amendments to Clause 41 have been withdrawn.

Division will be at the end. Clause 42

THAT, Clause 42 of the Bill be amended by deleting sub-clause (4) and substituting therefor the following new sub-clauses-

Division will be at the end. Clause 44

- THAT, Clause 44 (2) of the Bill be amended by deleting paragraph (a) and substituting therefor the following new paragraph-

Mr. Temporary Chairperson, Sir, I think you have omitted two of my amendments; that is Clause 37 (a) and Clause 42 (a) .

The Temporary Chairperson

: Sen. Abass, those are new clauses. We will come back to them. Clause 45

Mr. Temporary Chairperson, Sir, I beg to move- THAT Clause 45 of the Bill be amended in sub-clause (1) by deleting the words “he is” appearing in paragraph (b) (i) and substituting therefor the word “they are.”

This amendment seeks to introduce gender-neutral language.

The Temporary Chairperson

: Division will be at the end. Clause 46

Division will be at the end. Clause 47

Mr. Temporary Chairperson, Sir, I beg to move-

THAT clause 47 of the Bill be amended— (a) in sub-clause (2) by inserting the following new paragraphs—

Mr. Temporary Chairperson, I beg to move- THAT, Clause 48 of the Bill be amended by inserting the following new sub- clause immediately after sub-clause (3) -

Mr. Temporary Chairperson Sir, I want to get your direction on Clause 48. As you know, there is a High Court decision; Petition No.181 of 2023, that

declared Section 84 of the Finance Act unconstitutional and that was the basis for the collection of these funds.

So, the entire Clause 48 is unconstitutional in view of the declarations already made by the courts. It will have a retrospective application, which is not allowed.

The Temporary Chairperson (Sen. Abdul Haji): Yes, Sen. Cheruiyot.

Thank you, Mr. Temporary Chairperson, Sir. If Sen. Omogeni was in the House on the day that I moved the Bill, I made reference to the specific clause and said that as Parliament, it is our constitutional duty to legislate.

There is no happening outside the precincts of Parliament that can influence Parliament as it makes its decision on a law making process whichever way. It does not matter what the courts may have said on a particular topic. Article 94 of the Constitution of Kenya gives the Senate and the National Assembly the only responsibility of making law. Therefore, that is not an issue that should forestall us.

The Temporary Chairperson

: Thank you, Sen. Omogeni, do you want to comment?

Mr. Temporary Chairperson, Sir, the issue that I have with this clause is that it goes contrary to the High Court’s decision. The Court decision says that you cannot collect any taxes before you have a legal framework in place.

You can only collect the tax once the legal framework is in place. I have a copy of the High Court decision with me here. As a House, we are bound. When a court makes a decision, you cannot seek cover under Article 94 of the Constitution of Kenya because court decisions are binding on all of us.

So, if the court has declared a tax to be unconstitutional, you cannot legitimize that tax through legislation. You cannot pass a legislation that has retrospective effect.

The import of Clause 48 is to legislate retrospectively so that whatever was done without a legal framework will be given force of law by the passage of this Act, which is unconstitutional.

Mr. Temporary Chairperson, on a point of order. The Temporary Chairperson

: I will allow one person and then you before we close it. Sen. Boni, two minutes, please.

Thank you, Mr. Temporary Chairperson. The discussion taking place now is the reason we have the Committee of the Whole. Sen. Omogeni, the reading we have is that we are now making the law that will align with the fears that caused the courts to make that pronouncement.

Once we legislate the way we have done, going forward, we will be doing something, which will be aligned to what the courts wished. It is up to you as an active Member of the Azimio Coalition and a legislator to go and visit the issue of the money already collected. We are legislating for going forward.

The Temporary Chairperson

: Sen. Wambua, you have the Floor.

Thank you Mr. Temporary Chairperson, Sir. I need protection from Sen. Omogeni.

The Temporary Chairperson

: Sen. Omogeni, please.

Mr. Chairman, Sir, there is an issue that has been raised by the Senate Majority Leader. The court pronounced itself on this matter and said that the collection of tax was unconstitutional. The Senate Majority Leader has said that it is the work of Parliament to legislate in whichever way.

Mr. Temporary Chairperson, Sir, I want a ruling from you whether Parliament can legislate outside the Constitution. This is because the Constitution is very clear. It protects itself. The supremacy of the Constitution, and it says in black and white in Article 5 that-

“Any law including customary law, that is inconsistence with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid”.

The courts cannot make Parliament superior to the Constitution. Any legislation must be done within the Constitution.

The Temporary Chairperson

: Thank you, Senators. Sen. Omogeni, you are the one who brought these contentious issues at this point in time and you were doing very well before. You have brought several amendments. If you felt that this clause was unconstitutional, you should have made your amendments at that time so that we can proceed.

Furthermore, the court, throughout the Bill, felt that there was no legal framework. This is the legal framework that is now being made. So, Sen. Omogeni, I will have to rule the we proceed. You should have brought an amendment in due time. Therefore, we proceed.

The Temporary Chairperson

: Division at the end. Clause 49

Mr. Temporary Chairperson, Sir, I beg to move- THAT Clause 49 of the Bill be amended in sub-clause

(1)

by inserting the word “before” after the word “immediately”. This amendment seeks to ensure greater clarity by inserting the word “before” after the word “immediately”

The Temporary Chairperson

: Division at the end.

New Clauses

Mr. Temporary Chairperson, Sir, I beg to move- THAT the Bill be amended by inserting the following new clauses immediately after clause 11— New Clause 11A

Investments By the board 11A. The Board may, with the approval of the by the Cabinet Secretary in charge of Treasury, invest any income that is not immediately required.

The Temporary Chairperson

: Division at the end. New Clause 11B

Thank you, Mr. Temporary Chairperson, Sir. I beg to move- THAT the Bill be amended by inserting the following new clauses immediately after clause 11A— Borrowing by the Board

11B. The Board may, with the approval of the Board. Cabinet Secretary in charge of Treasury, borrow funds for the advancement of the objectives of the Act.

The Temporary Chairperson

: Division at the end.

New Clause 31A

Mr. Temporary Chairperson, Sir, I beg to move- THAT, the Bill be amended by inserting the following new clauses immediately after clause 31-

Mr. Temporary Chairperson, Sir, I beg to move-

THAT, the Bill be amended by inserting the following new clause immediately after clause 31A- Qualifications for appointment

31B. (1) A person qualifies to be appointed as the Chairperson of the County Committee if that person-

The Temporary Chairperson (Sen. Abdul Haji): Division will be at the end New Clause 31 C

The Temporary Chairperson (Sen. Abdul Haji): Chairperson kindly move.

I beg to Move that the Bill be amended by inserting the following New Clause 31C-

Tenure of office. 31C. (1) The Chairperson and members of the County Committee, shall hold office for a term of three years and may be eligible for re-appointment for an additional final term of three years.

I beg to Move that the Bill be amended by inserting the following New Clause 31D-

Remuneration of the County Committee members. 31D. The Chairperson and the members of the County Committee shall be paid such sitting allowances or other remuneration for expenses as recommended by the Salaries and Remuneration Commission.

I beg to move that the Bill be amended by inserting the following New Clause 31E-

Conduct of affairs and business of the County Committee. 31E. (1) The conduct of affairs and business of the County Committee shall be in accordance with the First Schedule of this Act.

Thank you, Mr. Temporary Chairperson, Sir. I beg to move that the Bill be amended by inserting the following New Clause 31F-

Functions of the County Committee. Cap 303, Laws of Kenya. 31F. (1) The County Committee shall—

Thank you, Mr. Temporary Chairperson, Sir. I beg to move, that the Bill be amended by inserting the following New Clause 31G-

County legislation. 31G. Nothing in this Act shall preclude county governments from enacting legislation related to affordable housing in the counties.

Thank you, Mr. Temporary Chairperson, Sir. I beg to move- THAT the Bill be amended by inserting the following new section immediately after clause 37 — Priority of ownership for slum residents.

37A. (1) The Board shall, where an affordable housing project is to be implemented on land on which exists a settlement, — ) issue a notice, in the prescribed form, to the residents in that settlement of the intended implementation of the project ) put in place a mechanism for the resettlement of the residents; and ) offer to the residents in that settlement, the first right of purchase of a unit in the project.

The Temporary Chairperson

: Division will be at the end. New Clause 42A

The Temporary Chairperson

: Sen. Abass, kindly move your amendment.

Thank you, Mr. Temporary Chairperson, Sir. I beg to move that the Bill amended by inserting the following New Clause 42A immediately after Clause 42. Issuance of a certificate of ownership.

42A. (1) The Board shall, with the approval of the Cabinet Secretary, transfer the ownership of an affordable housing unit to a qualified applicant upon completion of payment of the agreed price.

Thank you, Mr. Temporary Chairperson, Sir. I beg to move that the Bill amended by inserting the following New Clause 42B immediately after Clause 42. Restrictions as to ownership.

42B. A person shall not acquire more than one affordable housing unit developed under this Act.

The Temporary Chairperson

: Division will be at the end. New Clause 42C

The Temporary Chairperson

: Sen. Abass, kindly move your amendment.

One moment Sen. Abass. What is your point of order Sen. M. Kajwang’?

Mr. Temporary Chairperson, Sir, as per the procedure in this House, even in the Committee of the Whole, when the Chair proposes a Question, ideally, you pause to find whether there is a Member with a comment on any clause that

has been proposed to be part of a Bill. However, you are moving too fast. Even when we want to make any comment following your proposal, it becomes difficult to catch up, particularly, on Clause 42B. I wanted to comment on your proposal just before you put the Question. I was requesting that you move a little bit slowly at the proposal so that you only put the Question if there is no comment from the Members.

This is the stage of law-making. In the Second Reading, we are debating but at this point, we are writing the law with a fine toothpick. Mr. Temporary Chairperson, Sir, I beg that you allow me to make some comments on New Clause 42B and in subsequent proposals you can allow Members to contribute.

The Temporary Chairperson (Sen. Abdul Haji): Thank you, Sen. M. Kajwang’. You have been in this House for a long time and you know very well how to catch the Chair’s’ eye. You did it when you wanted to make a point of order and I gave you an opportunity to interject. In the same way, if you wanted to make your contribution to any of the clauses; we have a screen here. You should have pressed your intervention button and we would have seen and given you an opportunity.

Mr. Temporary Chairperson, Sir, if you can confirm from your dashboard my button has been pressed yet I have not been able to catch your eye. The point that Sen. M. Kajwang’ is making is that if you move as fast as you are between proposing and putting off the Question, then your fingers are not that fast.

Trust me. You will not even have the opportunity to look at the screen. Kindly, let us just allow Members to make any contributions they have by pausing. I know it is Ramadhan. I was going to say to take a sip of water but kindly catch your breath.

The Temporary Chairperson

: Thank you, Senator. Sen. M. Kajwang’, proceed.

Thank you, Mr. Temporary Chairperson, Sir. I raised that point to remind us of our solemn duty as lawmakers that legislation should never be rushed. I thank you for giving me this opportunity.

Clause 42B seeks to put restrictions on ownership. It says that a person shall not acquire more than one affordable housing unit developed under this Act. The question is whether this is an Act that is going to serve us for one, two or the next 100 years. What timeframe are we legislating on?

If you put it in law and cast it in stone that a person cannot acquire more than one affordable housing unit and we get to the point where the project becomes so successful that all Kenyans who wish to apply have done so and have been allocated housing units; are you going to shut down the scheme or come back to Parliament to amend it so that the next round of Kenyans can benefit?

We must be careful in the manner in which we legislate. We must also ensure whenever we make amendments at the Committee of the Whole stage; we should ask ourselves whether those amendments have been subjected to public participation. I know

that at the Third Reading Stage, any Member has a right to rise and make amendments subject to certain consultations with the Chair of the respective Committee. However, does it take away the right of the public to be part of the decisions we make? Does it take away the constitutional responsibility to ensure that we inject the views and voice of the public into what we do?

I think this is a fairly dangerous amendment because it comes from a position of want; a position that we are in and that could be easily solved in five or 10 years. Once the situation has been solved in 10 years and every Kenyan has access to affordable housing; even if they are not bought from this project, there are those who come from communities like mine--- I am still speaking to this amendment--- There are certain cultural dimensions to home ownership that we do not take into account when we are legislating.

We think that everyone comes from Singapore and South Korea, but we come from Kenya. In my community, when a boy gets to the age of 18 or 19, he is compelled to build his first house called a Simba. About 90 percent of men in my community have access to houses---

The Temporary Chairperson (Sen. Abdul Haji): Sen. M. Kajwang’, if you could please summarize, so that we can get a response to that argument.

Mr. Temporary Chairperson, Sir, as per the practice in this House, if there is a limitation of debate, it is done before the Member takes the Floor.

Mr. Temporary Chairman, Sir, when you propose a question in the Committee of the Whole, all of us have a right to comment on it. That is why we are requesting that you slow down between proposing a question and putting it. Those are the rules of debate. Until Sen. Cheruiyot feels outwitted, it is what it is. These are the rules of the House.

Mr. Temporary Chairman, Sir. I hope there is only one Chairman.

Thank you, Mr. Temporary Chairman, Sir, for protecting me. I take great exception to Sen. M. Kajwang's conduct. If it were another Senator, I would have assumed that probably he did not know the traditions of this House and what we do in Third Reading stage.

Sen. M. Kajwang' is being cheeky. I watched him when he entered the Chamber and I heard him ask his colleagues why they were not filibustering.

Mr. Temporary Chairman, Sir, please protect me. The Temporary Chairperson

: Sen. Sifuna, let him finish.

Mr. Temporary Chairman, Sir, I am not in the mood to engage in a heckling debate. Please protect me.

The Temporary Chairperson

: Sen. Cheruiyot, you are protected. Please proceed.

Sen. M. Kajwang' knows that in the Third Reading, you try to persuade hon. Members by stating why you are not in support of the proposed amendments in a quick witty comment; hardly beyond a minute. After that, you allow the Chairperson or the person moving the amendment to convince you why that amendment is important. This is not the debate stage.

Point of order! The Temporary Chairperson

: Hon. Senators, we need to conclude on Sen. M. Kajwang’s issue.

Sen. Sifuna, what is your point of order?

Mr. Temporary Chairman, Sir, I would like your attention. I am drawing your attention to Standing Order No.185 on general application of rules in Committee of the Whole. Allow me to read it.

“Except as otherwise provided in these Standing Orders, the same rules of order and of debate for the conduct of business shall be observed in the Committee of the Whole as in the Senate.”

Mr. Temporary Chairman, Sir, therefore, nobody should rise to tell you that there are traditions. Traditions are only applied where there is no express provision of the Standing Orders. Sen. M. Kajwang' is within his right. I am surprised that somebody has told us many times that he is doing the third term in this House yet he has no idea which Standing Order he is referring to.

Mr. Temporary Chairman, Sir, when someone stands up on a point of order, you must insist on which Standing Order he is rising. I have read the Standing Orders of this House. We will not be threatened by claims of people that they have been here for 10 terms yet they cannot read simple English.

Mr. Temporary Chairman, Sir, allow us to debate in the normal fashion because that is what the law says. Do not be intimidated by anybody telling you that he was elected before your grandfather was born. We are all here now and are subject to the same rules. We must speak in accordance with the Constitution and the Standing Orders.

Nobody should tell us about traditions. The Standing Orders dictate the traditions of the House. I dare anybody else to stand up and read---

Mr. Temporary Chairman, Sir, I have said on this Floor that I have tremendous respect for Sen. Cheruiyot. He is a young Senator who has a bright future. However, shouting at us is not right. He needs to allow us to raise our points of order.

We are in this House because we derive our powers from the Constitution. Sen. Sifuna has referred to Standing Order No.185. I want us to bear in mind Article 124 (1) of the Constitution. It states that–

“Each House of Parliament may establish committees, and shall make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.”

Mr. Temporary Chairman, Sir, the Standing Order that Sen. Sifuna has read has a bearing on what is happening. The same Standing Orders that allow us to raise issues

when we are legislating flow from power that is donated to you by Article 124 of the Constitution.

It is high time some of us moved to court to challenge some of these Standing Orders that limit our right to make contributions on behalf of the people of Nyamira, Homa Bay, and Nairobi who have elected us---

Mr. Temporary Chairman, Sir, please protect me from Sen. Cherarkey.

The Temporary Chairperson

: Let us hear him in silence.

Mr. Temporary Chairman, Sir, do not take this House back to where we were in Section 2A of the old Constitution. We are now operating under the Constitution of 2010.

Sen. Cherarkey, there are Kenyans who died to put this Constitution in place. We have to remind you about the history---

Mr. Temporary Chairman, Sir, we are in this House by virtue of powers that are bestowed on us by the Constitution 2010. Under Article 124, you have no right to limit us.

The Temporary Chairperson

: Thank you, Senator. Let me make a ruling, so that we move forward. I have to make a ruling, so that you can either proceed or not.

Sen. M. Kajwang’, I have to make a ruling on this matter. The ruling also touches on the issues you raised.

Hon. Senators, I believe what has been raised by the learned Senators in this House, who are very aware of the Standing Orders and whatever Standing Orders and clauses they have raised on the matter touching on the Constitution, is very clear. The Standing Orders are applied alongside the traditions and practices of this House.

The same way when we are in the standing--- Silence, Sen. Cherarkey. When we were in the Committee of the Whole, it is the same way that we do not have a seconder for anything that is moved or any question that is put.

This said hon. Senators, we will proceed as we were proceeding. If there is any clause that you want to make an intervention on, we will give you an opportunity to do so, but be very brief on the matter.

Okay, order! Let me give the rationale. I will explain myself. The Temporary Chairperson

: Sen. Abass, address the Chair.

Mr. Temporary Chairman, Sir, Clause 42 (b) limits the individuals to owning one house. This mentions many things. The concentration of units will be in few hands and it ensures equitable distribution among the intended beneficiaries.

You could have 100 wives and children, but you can always buy one house. We are taking care of the interest of those people.

We should take care of the interest of these people. These houses are meant for the poor people with low income. There is no way; you can buy 100 houses at the same time. Therefore, this clause justifies.

Clause 42 (b) limits one to owning only one house.

The Temporary Chairperson

: The Senate Majority Leader, please sit down.

Sen. M. Kajwang’ sit down. Hon. Senators, I am not sure if Sen. M. Kajwang’ was in the House when I made a ruling about justification and any interventions in the House will be limited for two minutes.

Hon. Senators, let me explain myself. Clause 42 (b) is meant to safeguard people so that every Kenyan must have affordable housing.

Order, my friend! I am not addressing you.

The Temporary Chairperson (Sen. Abdul Haji): Sen. Abass, address the Chair.

Okay. Mr. Temporary Chairman, Sir, I am trying to explain why we are limiting these houses to one person; for one individual, one house. For instance, you could have 100 wives, 10 to 20 children, but we are saying these houses are meant for the poor people and for the low-income earners.

If we say that we are allowing everybody to buy what he wants, then everyone will not get what he wants. What we want is for those people to get what they want, so that these houses can be equally distributed. Consequently, that is the justification of this clause.

The Temporary Chairperson

: Let us have Sen. M. Kajwang’.

Mr. Temporary Chairman, Sir, that was exactly my problem with this provision. That we are legislating for poverty, not for prosperity. When I was making my submission, I was saying that after five to 10 years, everyone has a house. So, what are we going to put in the law that since Sen. Cheruiyot already has a house somewhere in Langata, and after ten years there are additional and excess houses, that will stop him from going for the second round?

Mr. Temporary Chairman, Sir, that is poor legislative drafting and those are poor proposals that should not come in this law.

Article 117 of the Constitution talks about Powers and Privileges of Parliament. It provides unfettered freedom of speech and expression. Those people who today want to limit my speech and expression, we shall wait for you and your day will come when someone will have to stand up for your right of expression and freedom of speech.

Mr. Temporary Chairman, Sir, I believe because the two minutes are not over, that even after I have prosecuted my reservations on Clause 42 (b) , that all other Members with a contrary view must also be allowed to contribute because this is the only time when Senators can write laws.

Finally, when I am here --- The Temporary Chairperson

: Thank you, Senator. Sen. Kathuri, proceed.

Mr. Temporary Chairman, Sir, when we get to the Third Reading of the Bill, the purpose is to bring any amendment that you feel was not captured in the Bill. By doing so, you can convince Members and then we subject it to the vote.

Sen. M. Kajwang’ had all the opportunity during the Second Reading and the Third Reading to bring an amendment, which could have cured his problem. He could have an amendment that it should be open-ended, so that we bring it to the vote at the Third Reading.

Mr. Temporary Chairman, Sir, just before I comment on this, I want to talk about my 10 years’ experience now that we talked about traditions in the National Assembly.

On a matter which generates a lot of interest like this particular one, the Chairman will ordinarily allow as many as possible to comment so that out of that, Members could make a clear decision whether to amend further or to remain with the same position when we vote.

Mr. Temporary Chairman, Sir, my issue with this particular amendment is that one “may apply to the Board for approval of issuance of an affordable mortgage to develop a rural affordable housing unit.”

Mr. Temporary Chairman, Sir, this particular amendment begins to contradict the whole purpose of the housing. It goes on to create a situation whereby some people get more privileged than others. It creates discrimination, where you may enrich some people more than others.

There should be a way of limiting to make sure if it is affordable housing; it is a unit for everyone across the board. If you have to do round two, then it balances. You do not begin round two when somebody else does not have a house yet and they are deserving. So, it is discriminatory.

Mr. Temporary Chairman, Sir, I submit. The Temporary Chairperson

: Thank you, Senator. Senator Abbas, you have a comment.

Thank you, Mr. Temporary Chairperson. I wish to withdraw that amendment to the Bill.

An

On a point of order, Mr. Temporary Chairman, Sir. The Temporary Chairperson (Sen. Abdul Haji): Hon. Senators, what are you doing? Why do you not listen? Hon. Senators, since Sen. Abbas has withdrawn the amendments, this matter will not be put to vote. It is that withdrawn.

Sen. M. Kajwang’, you have you have actually won the debate. New clause 42C

The Temporary Chairperson (Sen. Abdul Haji): Sen. Abbas, proceed to move.

Mr. Temporary Chairperson, Sir, I beg to move- THAT the Bill be amended by inserting the following new sections immediately after section 42 – Restrictions to owners of affordable housing unit.

42C. Except with the prior written consent of the Board, a purchaser of an affordable housing unit under this Act shall not by contract, agreement or otherwise, sell or agree to sell his or her unit or any interest therein to any other person.

On a point of order, Mr. Temporary Chairman, Sir. The Temporary Chairperson

: Sen. Sifuna, what is your intervention?

Mr. Temporary Chairman, Sir, you should ordinarily allow us to make points of order.

Mr. Temporary Chairman, Sir, there is only one opportunity for you to have order in this House; that is enforcement of the rules equally.

If it were anybody on the minority side who was throwing the tantrum that I have seen the Senate Majority Leader do, he would have been thrown out of the House. Why is he being treated specially?

I want a ruling on each point of order that we raised because we must have a record of how this House treats people and how you apply the rules.

Mr. Temporary Chairman, Sir. Please do not pretend you did not see it. I know you are a good man. You have seen it and you must bear true witness.

The Temporary Chairperson (Sen. Abdul Haji): Seen what?

Mr. Temporary Chairman, Sir, the tantrum that--- The Temporary Chairperson

: No, I did not see.

Mr. Temporary Chairperson, Sir, I saw you seeing it. Do not be like that. We are in the holy month of Ramadhan. Please tell the truth.

How many people each side? The Temporary Chairperson

: I will give two people. I will allow two interventions from both sides. On the Minority side, we will have Sen. Wambua and Sen. Omogeni. On the Majority side, we will have Sen. Cherarkey and the Chairperson of the Committee.

Proceed, Sen. Wambua.

Mr. Temporary Chairman, Sir, on that proposed amendment 42 (C) I totally and completely oppose it. Yes, we will do that but it is an amendment that goes contrary to the Constitution on property rights. The law itself has been declared by the courts to be unconstitutional. Then, you are bringing an amendment that is completely unconstitutional. On this one, I strongly and totally oppose.

The Temporary Chairperson

: Thank you. Sen. Cherarkey, you may have the Floor.

Mr. Temporary Chairman, Sir, what we are trying to cure on this New Clause 42 (C) is what we saw in the National Housing Cooperation (NHC) a few years back where the intended beneficiaries ended up not being the intended.

Mr. Temporary Chairman, Sir, in the principle of equity, equality, morality and the law, we must ensure that we cushion against people being given houses through the affordable programme, then they resale those houses through the cartels that are in the NHC.

I support this New Clause 42 (c) . We shall not be lectured. If you want to be lectured, you can go to the University of Nairobi during public lectures. I support this clause because it will promote equity, equality and fairness in terms of access.

Finally, we need to protect the people who are beneficiaries of this programme.

Mr. Temporary Chairman, Sir, Sen. Cherarkey is my colleague. I know he is new in the profession, but there are some basic concepts in constitutionalism that Sen. Cherarkey should know.

Remember, the law that we want to enact will give Kenyans an opportunity to purchase houses. We are not going to give these houses to Kenyans for free. So, the moment you are taxed and you are given an opportunity to purchase, that becomes your property.

Sen. Cherarkey, through the Chair, if you never went to law school to study constitutional law, I will read for you Article 40 of the Constitution. I am trying to help you. This is what Article 40 states.

Now, I am trying to help you on this one.

You should throw Sen. Cherarkey out. This is not for anybody else, but for Sen. Cherarkey. Let him sit attentively and listen.

Article 40

(2)

on protection of the right to property says: “Parliament shall not enact a law---” The Temporary Chairperson

: Thank you, Senator.

Division will be at the end. The First Schedule

The Temporary Chairperson

: The Chairperson, Standing Committee on Roads, Transport and Housing, you may proceed.

Sen. Sifuna, you cannot be exchanging words, let us hear from the Chairperson.

Thank you, Mr. Chairman, Sir. I beg to move- THAT the First Schedule of the Bill be amended—

Mr. Chairman, Sir, I beg to move- THAT the Third Schedule of the Bill be amended by deleting paragraphs 2, 3, 4, 5 and 6.

The justification is that if you read the Third Schedule, the heading states the list of agencies for implementing the affordable housing programmes and projects. That amendment proposes to leave the county governments as the sole agents that will undertake housing programmes and projects.

The justification is that under the Fourth Schedule, Part 2, Section 8 of the Constitution, housing and development is a function of county governments. Therefore, it will be unconstitutional to allow the agencies listed in number 2, 3 and 4, which is the one that I had most concern about, that is the State Department for matters relating to

affordable housing. That will be going outside the constitutional mandate of policy that is reserved for national Government, the NSSF as an independent entity that cannot take over functions of county governments.

Mr. Temporary Chairman, Sir, I propose that all those bodies listed from 2, 3, 4, 5 and 6 be deleted.

On Clause 2 of the same Schedule, we seek to delete the reference to institutional housing.

I want to make a correction. I referred to the Sixth Schedule in all references I have made in my amendments initially; it should actually be the Fourth Schedule of the Constitution.

I thank you. (Question of the amendment proposed) The Temporary Chairperson (Sen. Abdul Haji): Division will be at the end. There is a further amendment by the Chairperson Standing Committee on Roads, Transport and Housing.

Mr. Temporary Chairman, Sir, I beg to move- THAT the Third Schedule of the Bill be amended by inserting the following new paragraphs immediately in paragraph 5—

5A. National Construction Authority. 5B. State Department responsible for matters relating to Public Works. We believe counties are agencies that are supposed to handle this work so, we are increasing more agencies to that part.

In Clause 2, this amendment seeks to remove the description of plinth area from the substantive legislation in favour of having the same defined under regulation. Also, the amendment seeks to define the term county committee.

The Temporary Chairperson

: Sen. Maanzo, one minute.

Mr. Temporary Chairman, Sir, when we make law, it must first go with the Constitution and then the Statute. The moment you fundamentally amend the original part of the Bill, even though we stand for devolution, and housing should be fully devolved, what the Chairperson has introduced, tend to reverse what had already been passed.

It is important, therefore, that they flow with the Constitution. This is not flowing and the amendment becomes automatically unconstitutional.

Mr. Temporary Chairman, Sir, I conclude. The Temporary Chairperson

: Sen. Sifuna. I am following the screen. You said you will intervene.

Mr. Temporary Chairman, Sir, with all due respect, I know it is causing some irritation to Sen. Cheruiyot when we do the jobs we were elected to do. I do

not know why they are in a rush. They should allow us to speak to the amendments that are being proposed.

I support the amendment that has been proposed by Sen. Omogeni. You can see---

Let him say what he wants to say. Let me sit down and listen. Say what you want to say. This is not your House.

Mr. Temporary Chairman, Sir, it will be difficult for you and for this House, if the management of who speaks and who does not is directed by Sen. Cheruiyot.

I fully support the amendment proposed by Sen. Omogeni that the units of national Government that have been put in this housing programme be deleted and we retain the county governments. Our responsibility as the Senate is to protect the interests of counties and county governments and devolution.

Mr. Temporary Chairperson, Sir, it is not our work to claw back on devolution by introducing national Government agencies in functions that are supposed to be devolved. That is what we are saying.

I thank you, Mr. Temporary Chairperson, Sir.

Mr. Temporary Chairperson, Sir, a motorcycle is defined by two attributes. It has an engine and two wheels. The minute you come up with a motorcycle Bill like what Sen. (Dr.) Khalwale has come up with, then you alter the definition of the motorcycle and remove the engine from it; leaving it only two wheels, then that is no longer a motorcycle. That is the mischief that Sen. Thang’wa is introducing here. We are dealing with the Affordable Housing Bill and we are changing the definition of affordable housing at this point, after subjecting it to public participation. That is unconstitutional because one cannot alter materially the substance of a Bill at this point, in time.

Mr. Temporary Chairperson, Sir, I wish that Sen. Thang’wa can gracefully withdraw that amendment. This is because we cannot be deleting the plinth and only maintaining the income status.

The Temporary Chairperson (Sen. Abdul Haji): Thank you, Senators. (Question of the amendment proposed) Division will be at the end. Clause 2

The Temporary Chairperson (Sen. Abdul Haji): Clause 2 has two amendments, but they are not conflicting. Proceed, Sen. Omogeni--- Okay, let us start with the amendment by the Chairperson, Standing Committee on Roads, Transportation and Housing. We will have to drop the amendment by Sen. Omogeni.

Thank you very much, Mr. Temporary Chairman, Sir. I beg to move-

THAT Clause 2 of the Bill be amended—

Proceed, Sen. Maanzo.

Madam Temporary Chairperson, my contribution is brief. That there must be consistency. The whole idea is devolution. Housing is a devolved function. Therefore, the moment you introduce an element that takes it back to a national function, it becomes unconstitutional.

I oppose. The Temporary Chairperson

: Sen. Cherarkey, you only have a minute.

Madam Temporary Chairperson, when you look at the Fourth and Third Schedules of the Constitution in devolved and national Government functions, it is cross-cutting. Therefore, it is a misnomer to say housing is fully devolved yet when it comes to policy and implementation, it is cost-shared between both the national and county governments.

The Committee is in order. I support.

Division will be at the end. Title

The Temporary Chairperson

: I invite the Chairperson Standing Committee on Roads, Transportation and Housing to move this amendment.

Madam Temporary Chairperson, I wish to withdraw that amendment.

The Temporary Chairperson

: That has been withdrawn; there is no need to proceed.

Division will be at the end. Clause 1

Thank you very much, Madam Temporary Chairperson. Having dropped the Title, I wish to also withdraw this amendment.

Madam Temporary Chairperson, I must seek your discretion and allow me to move the amendment on Clause 2 under Standing Order No.1.

The Temporary Chairperson

: Are you withdrawing it?

No, I am moving the amendment. The Temporary Chairperson

: Proceed.

Madam Temporary Chairperson, I beg to move- THAT Clause 2 of the Bill be amended by deleting the definition of the word “institutional housing”

The justification is to remove the definition of the words institutional housing to align it with my other proposed amendments in the Bill.

Thank you, Madam Temporary Chairperson. The Temporary Chairperson

: So, you have brought back the amendment?

Yes, I have now brought back the amendment. That is Clause 2 of the Third Schedule.

The Temporary Chairperson

: Division will be at the end.

I now ask the Mover to report progress.

Madam Temporary Chairperson, pursuant to Standing Order No.153, I beg to move that the Committee of the Whole do report the progress on its consideration of the Affordable Housing Bill (National Assembly Bills No.75 of 2023) and seek leave to sit again today.

Hon. Members, please have your seats. Sen. Madzayo and Sen. Tabitha Keroche, let us transact business.

What is your point of order, Senate Majority Leader?

Mr. Deputy Speaker, Sir, I rise pursuant to Standing Order No.34 (4) (a) to move that the House extends its sitting time until conclusion of the Order No.10 on the Order Paper.

I request the Senate Deputy Majority Whip to second.

Mr. Deputy Speaker, Sir, I second.

Hon. Senators, what is the mood of the House?

Mr. Deputy Speaker, Sir, it has become a habit every time there is a matter such as this, instead of allowing more debate on the matters that are before the House, you would see how we were being rushed in the Committee of the Whole. We could not even speak to the amendments that are being brought here.

It is hypocrisy for you to extend the sitting of the House, so that you can achieve your nefarious political ends. I issue a very stern warning to the Senate Majority Leader; he is abusing the rules of this House. When we want time to make meaningful contributions to specific legislations like we were doing in the Committee of the Whole, he was the one who was making sure that Members could not speak to the matters that are important to the constituency; the people who elected us. Now he is going to keep us here; I do not know what he wants us to do now. If I were on the Majority side---

Sen. Sifuna, you cannot file that question direct to him. Just file it through me and then I will make the determination.

Mr. Deputy Speaker, Sir, I do not trust you as a conduit for the messages that I want to transmit. I would rather he hears directly from me.

Thank you, Sen. Sifuna.

Mr. Deputy Speaker, Sir, I have not finished.

I had just allowed two minutes for each Member and you are done with yours.

Sen. Cheptumo, you have the Floor.

Mr. Deputy Speaker, Sir, if you look at the demeanor of Sen. Sifuna, he is supporting the extension of the House. At some point, he was smiling. That is my opinion. I may be wrong, but that is my opinion. He is my friend, anyway.

Mr. Deputy Speaker, Sir, there is a justifiable reason why the Senate Majority Leader sought an extension. We are done with the Committee of the Whole and what is remaining is a small part of this process.

It is only fair that we allow a small extension so that we sort out this. It is not out of order; it is prudence in good faith for this House.

Actually, I am giving Members who have not spoken this afternoon an opportunity.

Sen. Osotsi, you have the Floor.

Mr. Deputy Speaker, Sir, I have been sitting here. I came to this House to contribute to this Committee of the Whole debate. However, I am surprised that we were gagged and we could not make our contribution to this Bill.

Now the Senate Majority Leader wants us to finish this process this evening, I wonder why the hurry because we will still be here on Tuesday, next week, to pass this Bill.

In any case, this Bill with the amendments that have been proposed, will go into the Mediation Committee. So, why are we rushing through when in any case, it is going through the Mediation Committee? This is just fertile ground for opposition of this Bill in court.

Last but not least, Sen. Munyi Mundigi?

Asante, Bw. Naibu Spika. Ninaunga mkono tuweze kupiga kura kwa sababu walio wachache wote wako hapa Bungeni leo. Ninamwona Katibu Mkuu, the Senate Minority Leader na hata Mwenyekiti wa Kamati ya Mazingira ambaye huwa haonekani hapa lakini, leo wote wamekuja ili waongee mambo ya makazi ya bei nafuu ili wasikike kule nje.

Your time is over, Sen. Munyi Mundigi.

Hon. Senators, kindly do not direct the Chair. I am competent enough to run this House. I do not want any directions from any quarter.

Mr. Deputy Speaker, Sir. I beg to report that the Committee of the Whole has considered the Affordable Housing Bill, (National Assembly Bills No.75 of 2023) and seeks leave to sit again today.

I call up on the Mover.

Mr. Deputy Speaker, Sir, I beg to move that the House do agree with the Committee of the Whole in the said report. I request the Senator of Nyandarua County to second.

Sen. Methu, kindly proceed.

Mr. Deputy Speaker, Sir, I second.

Let us move on to the next Order.

Hon. Senators, we can now settle down so that we can move into Division. Serjeant-at-Arms, you may close the Doors and draw the Bar.

Sen. (Dr.) Lelegwe Ltumbesi, Samburu County; Sen. Lomenen, Turkana County; Sen. Mandago, Uasin Gishu County; Sen. Mariam Omar; Mandera County; Sen. Methu, Nyandarua County; Sen. Munyi Mundigi, Embu County; Sen. Murgor, West Pokot County; Sen. Seki, Kajiado County; Sen. Tabitha Keroche, Nakuru County; Sen. Thang’wa, Kiambu County; Sen. Wafula, Bungoma County; and, Sen. Wamatinga, Nyeri County;

The Temporary chairperson (Sen. Veronica Maina): Hon. Senators, these are the results for the Division:

The Temporary Chairperson (Sen. Veronica Maina): Hon. Senators, these are the results of that Division on New Clauses.

Thang’wa, Kiambu County; Sen. Wafula, Bungoma County; and, Sen. Wamatinga, Nyeri County.

The Temporary Chairperson (Sen. Veronica Maina): Hon. Senators, these are the results of the third Division.

Hon. Senators, these are the results of the fourth Division.

We are proceeding to the fifth Division on all Clauses.

Sen. Majority Leader and Sen. Osotsi, proceed and vote.

Omogeni, Nyamira County; Sen. Osotsi, Vihiga County; Sen. Sifuna, Nairobi County; and, Sen. Wambua, Kitui County.

The Temporary Chairperson (Sen. Veronica Maina): Hon. Senators, this is the results of the fifth Division

Madam Temporary Chairperson, I beg to move that the Committee do report to the Senate its consideration of the Affordable Housing Bill (National Assembly Bill No.75 of 2023) , and its approval thereof with amendments.

Mr. Temporary Chairperson, I

Hon. Senators, we are going to the final voting.

Draw the Bar and close the Doors.

On a point of order, Mr. Deputy Speaker, Sir:

A point of order on what now, even before we begin transacting business?

Sen. Wambua, what is your point of order?

Thank you, Mr. Speaker, Sir. For the correctness of the records of the voting, we have realised on this side that Sen. (Dr.) Murango has voted in this Division yet he is not in the Chamber and he does not have a delegation. How did that happen?

Yes, Sen. Majority Leader.

Mr. Deputy Speaker, Sir, on this side, we equally noted that on the fourth Division, Sen. Faki, the Senator for Mombasa County was not in the House and his vote has been recorded. We need that to be checked as well.

Hon. Senators, this is a very simple matter and it is provided for in our Standing Orders. Anything that is provided for in our Standing Orders should not bring any problem in this House.

If you go to Standing Order No.90, and I read verbatim- “If, after an electronic or a roll call vote has been made, it is discovered that the number has been inaccurately reported or that an error has occurred in the names on the division lists, that fact shall be reported to the Senate and the Speaker shall direct that the necessary correction be made.”

I now direct that the necessary correction should be made on those two Senators who have voted and yet are not in this House.

I now call upon the Chairperson to report.

Mr. Deputy Speaker, Sir, I beg to report that the Committee of the Whole has considered the Affordable Housing Bill (National Assembly Bills No.75 of 2023) and its approval thereof with amendments.

Mr. Deputy Speaker, Sir, I beg to move that the House do agree with the Committee in the said report. I request the Senator for Nyandarua to second.

Mr. Deputy Speaker, Sir, I second.

The Mover, kindly proceed.

Mr. Deputy Speaker, Sir, I beg to move that the Affordable Housing Bill (National Assembly Bills No.75 of 2023) be now a Third Time.

I request the Deputy Senate Majority Leader to second.

Mr. Deputy Speaker, Sir, I second.

Hon. Senators, we shall now proceed to Division. Serjeant-at-Arms, kindly ring the Division Bell for two minutes.

Hon. Senators, I assure that this House will remain a House of debate and nobody will be stifled. Therefore, withdraw your cards. We do not want the same mistake to repeat itself. The Serjeant-at-Arms, ensure that no card is unattended.

I want a confirmation from the Serjeant-at-Arms, that there are no unattended cards. I will vote manually. Log in and proceed to vote.

Order, Hon. Senators. Take your seats. Sen. Munyi Mundigi and Senate Majority Whip, take your seats.

Take your seat, Sen. Cystal Asige. You will be sorted out.

Order, Senators! Senate Majority Leader, conclude that Kamkunji then we get the results. Take, your seat, kindly.

(Question, that the Affordable Housing Bill (National Assembly Bills No. 75 of 2023) be now read a Third Time put and the Senate proceeded to vote by County Delegations) AYES: Sen. Abass, Wajir County; Sen. Abdul Haji, Garissa County; Sen. Cheptumo, Baringo County; Sen. Cherarkey, Nandi County; Sen. Cheruiyot, Kericho County; Sen. Chesang, Trans Nzoia County; Sen. Chute, Marsabit County; Sen. Gataya, Tharaka Nithi County; Sen. Githuku, Lamu County; Sen. Joe Nyutu, Murang’a County; Sen. Kathuri, Meru County; Sen. Korir, Bomet County; Sen. (Dr.) Khalwale, Kakamega County; Sen. Kinyua, Laikipia County; Sen. Kisang, Elgeyo Marakwet County; Sen. (Dr.) Lelegwe Ltumbesi, Samburu County; Sen. Lomenen, Turkana County; Sen. Mandago, Uasin Gishu County; Sen. Mariam Omar, Mandera County; Sen. Methu, Nyandarua County; Sen. Munyi Mundigi, Embu County; Sen. Murgor, West Pokot County; Sen. Seki, Kajiado County; Sen. Tabitha Keroche, Nakuru County; Sen. Thang’wa, Kiambu County; Sen. Wafula, Bungoma County; and, Sen. Wamatinga, Nyeri County.

NOES: Sen. Crystal Asige, Mombasa County; Sen. M. Kajwang’, Homa Bay County; Sen. Madzayo, Kilifi County; Sen. Mwaruma, Taita Taveta County; Sen. Oketch Gicheru, Migori County; Sen. Olekina, Narok County; Sen. Omogeni, Nyamira County; Sen. Osotsi, Vihiga County; Sen. Sifuna, Nairobi City County; and, Sen. Wambua, Kitui County.

Hon. Senators, the results for the Division are as follows:

Now, draw the Bars and open the Doors.

Hon. Senators, having concluded business in Order No.10 and the time being 6.55 p.m., it is time to adjourn the House. The Senate, therefore, stands adjourned until tomorrow Wednesday 13th March, 2024 at 9.00 a.m.

The Senate rose at 6.55 p.m.