Tuesday, 8th July, 2025 Special Sitting

Clerk, do we have quorum?

Serjeant-at-Arms, kindly ring the Quorum Bell for 10 minutes.

Serjeant-at-Arms, kindly ring the Quorum Bell for another 10 minutes.

Order, hon. Senators. We now have quorum. Kindly take your seats, so that we can start the business of the day.

Clerk, you may proceed to call the first Order.

Hon. Senators, I have a Communication to make relating to the business of the Senate scheduled for consideration during this solemn Sitting.

You will recall that at the Special Sitting of the Senate held on Monday, 30th June, 2025, I appointed today, Tuesday, 8th July, Wednesday, 9th July and Thursday, 10th July, 2025 as the days when the Senate will hear the charges for the proposed removal from office, by impeachment, of Hon. Abdi Ibrahim Hassan, the Governor of Isiolo County.

Vide Gazette Notice No.8732 dated 1st July, 2025, I notified the general public that pursuant to Standing Order No.80 (1) (b) (ii) of the Senate Standing Orders, the Senate shall investigate the proposed removal from office, by impeachment, of Hon. Abdi Ibrahim Hassan, the Governor of Isiolo County, in plenary. Consequently, a Hearing Programme has been prepared and appended to the Order Paper of today.

Hon. Senators, in accordance with the schedule of activities for an impeachment hearing in plenary, the Senate will hold a closed-door preparatory session to deliberate on the management of the investigation. The objective of the preparatory session is to ensure that the process is conducted seamlessly, concluded timeously and in line with the requirements set out under the Constitution and the Senate Standing Orders.

Hon. Senators, during the pre-hearing, the parties

, all members of the public and the media will be expected to withdraw from the Chamber and the galleries, and any form of broadcasting from the chamber shall cease.

Consequently, I now direct the parties

, members of the public and the media, to withdraw from the Chamber and the galleries, and that any form of broadcast from the Chamber to cease forthwith. In accordance with the Hearing Programme for an Impeachment Hearing in plenary, the open session will commence at

Order, hon. Senators! Kindly, take your seats.

Sen. Chute and your team, please, take your seats. Clerk, you may now proceed to call the first Order.

Thank you very much, Mr. Speaker, Sir. The legal team for the County Assembly of Isiolo is comprised as follows-

Sen. Wamatinga, take your seat. Hon. Senators, I now similarly invite Counsel for the Governor to introduce the legal team representing the Governor by stating the full name and designation of each person.

You may proceed, Counsel.

Hon. Speaker, Sir, on behalf of the Governor of Isiolo County, we have the following team of advocates. We have-

Sen. Onyonka, take your seat, please. Now, Hon. Senators, on behalf of the Senate, I welcome the team for the County Assembly, the team for the Governor, members of public and the media to this Senate and to these proceedings.

Finally, I now invite the Clerk to call the next Order, and thereafter read the charges against the Hon. Abdi Ibrahim Hassan, the Governor of Isiolo County.

Clerk, you may proceed.

Next Order, Clerk.

Mr. Speaker, Sir, we had given an indication to the Senate that we intend to raise two issues for the consideration of the Senate. The issue is contained in Volume No.1 of the documents that we filed in response. We filed several documents, but Volume No.1 contains the preliminary issue that we intend to raise on the Speaker. With your leave, I can then quickly delve into that question.

Mr. Speaker, Sir, we noted from the order of proceedings that was supplied by the Senate, that this session will take about two hours, with one hour on our side. I propose to take about 30 minutes or less, introducing the first limb of the preliminary issue we intend to raise. Thereafter, my colleague, Mr. Elisha Ongoya, will take 20 minutes. I will

reserve 10 minutes for any rejoinders, which will be handled by our colleague, Mr. Elias Mutuma.

Mr. Speaker, Sir, and hon. Senators, with your permission, we would then move to raise the preliminary question.

Are you saying you require one hour for preliminary question? What you are saying is that you require one hour to effectively move your preliminary issue?

Yes, Mr. Speaker, Sir.

Okay. I will grant you one hour and also grant the County Assembly one hour to respond to your preliminary issues.

You may proceed and time starts running from now.

Thank you, Mr. Speaker, Sir. Mr. Speaker Sir, on the 26th June, 2025, the Speaker of the County Assembly of Isiolo issued a press communication at around 3.00 p.m. announcing that the County Assembly had resolved to impeach the Hon. Abdi Ibrahim Hassan, the Governor of Isiolo County. This communication will be found in Bundle No.3 of our volumes, that is Volume No.3, at pages two, three, four and five.

This release is significant in these proceedings as it marks, in our view, the announcement of a phantom impeachment of the Governor. We will shortly demonstrate the salient gaps and schemes and hopefully persuade the Senate to reject this phantom impeachment.

The press release by the Speaker of the County Government of Isiolo triggers a very important question, and that is the question upon which our first limb of the preliminary objection stands: What is in law, a resolution of the county assembly?

The County Assembly of Isiolo Standing Orders and specifically Standing Order No.65 (8) provides that when a Motion for the removal of the governor is passed by at least two-thirds of all the members of the assembly, the Speaker shall inform the Speaker of the Senate of that resolution within two days. You will find this resolution from the County Assembly in the Assembly's Volume No.3 at page 100.

It is our submission that for the power of the Senate to be invoked under Standing Order No.80, the Speaker of the Senate must receive a resolution from the Speaker of the County Assembly. Therefore, there is a test that is two-fold. The first test is that there is a resolution and the next is that it is supported by two-thirds of the Members of the County Assembly.

In forwarding this resolution, the Senate Standing Orders, the Third Schedule of the Standing Orders and the Senate Guide Manual on the procedure and rules for removal of county governments developed in 2025, require certain documents to be submitted together with the resolution. That is: the Impeachment Motion, the County Assembly HANSARD, the Division of voters list, the advertisement of the summons to the governor, the list of witnesses of advocates, the list of advocates, list of witnesses, records and videos and other evidence. It is our submission that this requirement has a good purpose and it now fits into the preliminary objection or the preliminary issue that we raise.

I will then invite you to examine the documents that were presented alongside the resolution from the Speaker of the Isiolo County Assembly in support of the fact that there was a resolution adopted by the Assembly to remove the Governor.

I will refer the Senate to the County Assembly documents, and that is at Volume No.3 of the County Assembly documents, pages one to six, which has the Order Paper of the 18th June, 2025, and that Order Paper ultimately indicates that the Motion for the removal of the Governor was adjourned to Thursday, 26th June, 2025 at 2.30 p.m. That time is extremely material to these proceedings.

The HANSARD of 18th June, 2025 at pages seven to 14, that is still Volume No.3 of the County Assembly documents, indicates that the proceedings for removal of the Governor were also adjourned to the 26th June, 2025 at 2.30 p.m. At pages 15 and 16, that is still Volume No.3, there is an invitation to the Governor to attend. That invitation invites the Governor to attend the County Assembly on the 26th June, 2025, at 9.00 a.m.

Volume No.5 of the County Assembly's documents at pages three and four contains the Affidavit of Service of that invitation served by the Speaker. So, there is no doubt whatsoever that the Governor is invited to appear at 9.00 a.m. on 26th June, 2025.

The Speaker in Volume No.5 also presents a document for the special sitting of the Assembly. It is dated 23rd June, 2025 and that sitting is indicated to commence at 9.00

Thank you, Mr. Speaker, Sir. The Counsel representing the County Assembly will be here shortly to try and convince you that what we have raised is not a preliminary objection, but requires an interrogation by way of listening to witnesses and making a determination based on what they will say.

Our submission is simple, that what we have raised is a pure preliminary objection that can be addressed and determined based on what has been presented by the County Assembly of Isiolo.

My understanding of HANSARD records is that they are a verbatim record of what transpires in the House proceedings. Therefore, they are able to tell us exactly what happened on the day that that Motion is said to have been passed. We have raised an issue with proceedings that are said to have taken place on 18th June, 2025 and 26th June,

Thank you, Mr. Speaker and distinguished Senators. I will proceed to argue the final limb of the objection, but just to cap up what my learned colleagues have told you, that before you is a purported HANSARD in the form and content that you have been taken through. If before you is a purported HANSARD that no one has taken the courage of his or her conviction to certify, if somebody brought before this House a HANSARD that is not certified, because certification is done by a particular officer whose signature we can tell, is what is before you a HANSARD of the County Assembly of Isiolo or a mere piece of paper?

If we conclude, as I invite you to, that what is before you is a mere piece of paper to the extent that it is not certified, can we take any other proceedings on the strength of that mere piece of paper? That is what makes this issue a proper preliminary objection for resolution one way or the other before we can go into the trial.

Secondly is the issue of the order of the court. I want to address this issue as follows. We are guided by the Constitution and other laws, the Standing Orders and to an extent, the manuals that this House publishes from time to time, to inform both these Members and the members of the public who interact with this House.

My research has revealed that the latest manual issued by this House is a manual entitled “Removal from Office of County Governors and Deputy County Governors through Impeachment, an easy-to-use manual on the procedures and rules”. That manual, on the face of it, was published by the Directorate of Legal Services and the Senate Liaison Office in the year 2025, which is this year. Part three of that manual is entitled “Judicial Proceedings against Impeachment”. This is the position this House has communicated in that manual at page 60, which is the very last page of that manual.

There are two subtitles at page 60 of that manual. Subtitle one, Comply with Court Orders. It says-

“Parliamentary Privilege and Immunity and the Principle of Separation of Powers do not shield the county assemblies and the Senate from court orders. When court orders are issued, they are binding on the County Assembly and the Senate and must be complied with. Failure to comply with court orders may result in the invalidation of the entire process of impeachment by the courts.”

The second subtitle is “Participate Actively in Court Proceedings”. This Senate has communicated to us through this manual that ignoring court orders against the County Assembly or the Senate is not the solution. If court orders are issued against a County Assembly or the Senate, the most preferable option is to participate actively in the court proceedings. The County Assembly or the Senate may apply for review of the court orders or appeal to the next court for variation or the setting aside of the court orders. That is the manual that this House has published as late as this year.

Allow me to make the following submissions then. The existence of the orders of court I am going to refer to is not a disputed fact. It is a fact admitted by the County Assembly in their written submissions. The existence of these orders is not a contested issue. It not being contested, it follows therefore that this Senate can proceed right away to resolve the question of the impact of those orders without investigating whether they exist or not. This is because between the parties, it is an admitted fact.

Allow me to begin by referring this Senate to an earlier ruling of the Speaker of the then only House of Parliament, which was the National Assembly, before the new Constitution. This was the ruling by Speaker Kenneth Otiato Marende on the question of nominations of Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget. That ruling was made on the 17th of February 2011. You will find that ruling starting at page 165 of Volume No.IV of the Governor's documents.

The relevant Part I will refer to in the interest of time is at page 168 of that volume; Volume No.IV of the Governor's response. At page 168 is a continuation of that

ruling of the then Speaker of the National Assembly, Hon. Kenneth Otiato Marende. He says, and I quote-

“Hon. Members, between the time when Mr. Imanyara first raised the matter and now, I have had the benefit of considering a range of material addressing the various aspects of the matter. Specifically, I have benefited from, among others, the position taken by the Judicial Service Commission, the Commission on Implementation of the Constitution and the Law Society of Kenya. I have also carefully read and considered the ruling of the High Court relating to the matter of nominations, which was delivered on 3rd February 2011.”

I had the rare privilege of participating in that court proceeding. The first three of these bodies are constitutional or statutory and their views on matters of law, though not binding to this House, are of significant persuasive value.

As for the ruling of the High Court, despite my restatement of the constitutional relationship between the legislature and the judiciary; I have repeatedly emphasized that while subsisting judicial decisions cannot restrain the legislature - that is important to us because I am addressing this issue - from the discharge of its functions, are of binding persuasive value and should not restrain the legislature from the discharge of its functions and are of binding effect and may have a bearing on the products emanating from this House.

The learned Hon. Justice Musinga in his ruling in the above case found that the nomination of the Chief Justice was unconstitutional, for it was not in accordance with Article 166 of the Constitution.

I will then proceed to page 169 of that Volume in the interest of time, the third paragraph starting with “honorable Members”.

“Although I have read that this court decision does not stop the National Assembly from proceeding with its work and cannot determine for the House how to proceed; it must be noted, as matters currently stand, that any decision made by this House on the nomination, though perfectly procedural from the point of view of the legislature, outside the legislature, it is to the extent that it does not accord with the ruling of the court, null and void for all purposes.”

That is the guidance that Hon. Marende makes. Mr. Speaker, Sir, allow me to come to the specific ruling that we wish to draw this Senate's attention to. I refer you to Volume No.4.

highlight that the parties before you are parties in that suit. They are, therefore, bound by the decision of that court.

I will just go straight page 27. You will find that paragraph 28 of that Ruling where the Judge observes as follows-

“It is important to note that there was no complaint raised when the first orders were issued by the court in respect of the Motion dated 10th June, 2025 that was to be debated on 17th June 2025.”

In fact, the sentiments by the Mover of that Motion, the contemnor, vindicates the court as he has in his affidavit, conceded that the Motion was defective in substance and marred with procedural irregularities; the very grounds that the Petitioner has sought to rely on. The Mover of this Motion went and told the court that, it is true that the orders you gave first were right because the Motion I had tabled was marred. It was defective in substance and marred with procedural irregularities.

Allow me to then take you to paragraphs 45, 46, and 47 of that Ruling at page 35 of Volume No.4. In paragraph 45, the Judge says-

“Therefore, it is the finding of this court that the Motion dated 18th June, 2025 and debated by the First Respondent on 26th June, 2025 was in contravention of the conservatory orders of this court issued on 25th June, 2025. Hence, the resolution arising therefrom is null and void.”

Once an act is declared null and void, it is of no legal consequence. A court of law has found that this Motion which has now been brought here before you Senators, is null and void. It is of no legal consequence.

Paragraph 46 has stated that the resolution has evidently been submitted to the Speaker of the Senate. It is thus upon the Senate, once informed of the orders herein, which I am now doing, to determine if it will proceed to handle the said resolution, thus abating a blatant disregard of the rule of law or the respect of orders. The matter at hand calls for a stand to be taken by the constitutional organs involved. What they choose to do will have set a precedent on the necessity for compliance with court orders. It is a choice between anarchy and constitutionalism.

Distinguished Senators, the judge is saying this; I am aware and I cannot stop you from doing your work. He is saying; proceed and go to the Senate. To my mind, that was an extremely wise move by the Judge considering historical pleas for there to be an institutional committee between institutions and to respect the powers of each organ. However, the judge is also saying; you decide for yourselves how you will proceed. I have made a finding that that Motion is null and void and of no effect.

Mr. Speaker, Sir, I will contradistinguish this with other scenarios that the other side will draw your attention to shortly. The judge has not issued a conservatory order against the Senate. The judge has made a determination on the validity of the Motion purportedly debated and purportedly approved by the County Assembly of Isiolo. The Judge has made a determination that it is null and void, and of no legal consequence.

You are being invited to engage with this Motion on that strength of fact and on the strength of the finding by the Judge that the Motion as approved, and as brought before you, is null and void, and of no legal effect. We, therefore, invite you to introspect and make this determination. When the impeachment law calls upon you to determine a

Motion that has been approved by the County Assembly, is it just any motion or a valid motion? If there is information before you that the Motion is invalid for any reason, what is the precedent that has been set by this Senate?

It is against that background that I wish to draw this Senate's attention to its resolution found from page 136 of Volume No.4 of the Governor's documents. This was the determination of the proposed removal from office by impeachment of the Governor of Kericho County, hon. (Dr.) Erick Kipkoech Mutai.

On that occasion, the validity of the resolution was questioned on the ground that the Motion had not met the threshold. Rightly, this House found that it could not move a step further because the validity of a Motion is an important precondition to the carrying out of the trial process on the Motion.

Mr. Speaker, Sir, similarly, by parity of reasoning, today, the validity of another Motion has been impugned on two grounds. Firstly, there was no sitting known to law of the County Assembly of Isiolo to approve the Motion. Secondly, in any event, a court of competent jurisdiction has made a finding that whatever came from the County Assembly of Isiolo is null and void, and of no legal consequences.

Will you, in the face of the precedents set by previous Speakers’ rulings and by the resolution in the case of Kericho County Governor's case proceed to trial on that understanding? We beseech you with humility to find that there is no Motion known to law before you and thereby down your tools.

Mr. Speaker, Sir, I humbly submit and rest the Governor's submissions on that question

of the preliminary objections. I reserve our minutes for a rebuttal from this side once the County Assembly has finished their response.

I thank you.

Counsel for the County Assembly, please, proceed.

Mr. Speaker, Sir, I will respond to the arguments that have been made by my learned colleagues for the Governor. I am the only member of the team for the County Assembly that will respond to those preliminary issues.

Mr. Speaker, Sir, I am grateful for the opportunity to respond to those preliminary issues. I shall constrain myself to the time that Mr. Speaker has gladly extended our way.

I wish to start my response to those preliminary issues by stating that a preliminary issue, by definition, must be an issue that goes to the ability of this House to entertain the Motion before it. It cannot be an issue that is merely important to the Governor---

Sorry, I cannot see my time. Thank you. It cannot be an issue that is merely important to the Governor and who then chooses to bring it forward and deal with it as a preliminary issue. Therefore, it does not go to the ability of this House to hear the Motion before it.

Mr. Speaker, Sir, it is settled that a preliminary issue assumes that the facts are settled. The consideration of what the Governor's counsel purports to be a preliminary issue involves the detailed consideration of evidence.

I was constrained to stand up on my feet and object towards my colleagues who were on their feet because it was apparent that what they were doing for the Governor was leading evidence. They were testifying and referring to contested statements in the panels of both documents and there are responses from the County Assembly in respect of those statements. Those statements must be tested by way of cross-examination and only once the evidence is laid before this House and it is tested, like the Assembly is entitled to do, then can this House make up their minds as to whether or not those issues hold any water.

I am not saying that this House should not consider those issues, but rather that this House should not consider those issues as issues that are preliminary to the determination of the Motion. There are issues in the Motion and I will demonstrate in a moment how those issues are indeed issues in the Motion.

I have chosen to respond to the issues that were argued by my learned colleagues for the Governor using a slightly different framework from what they did. We distilled three or four issues from the notice of preliminary objection that was served on the County Assembly, and I wish to crystallize the first issue I wish to respond to as follows-

That, the Governor challenges the validity of the impeachment Motion in light of the declaration by the High Court of Kenya sitting in Meru that the impeachment proceedings are a nullity. It is correct, as was submitted by Mr. Ongoya, that it is not contested that, indeed, there are orders that were issued by the High Court of Kenya sitting in Meru in respect of these proceedings. However, what is contested, and I doubt we will agree on this, is the effect of those orders on these proceedings. Mr. Ongoya and his colleagues say that the effect of those orders on these proceedings is to invalidate them and this Senate should, therefore, down its tools. We disagree.

I wish to submit and emphasize that elections to offices such as those occupied by the Members of this House are conducted by the people of Kenya in furtherance of primordial sovereignty. The exercise of removal of an elected official such as the removal of a governor is, therefore, in my submission, the flipside of that exercise of primordial sovereignty.

Mr. Speaker, Sir, as authority to my submission, I wish to refer you and Members of this House to the provisions of Article 1 of the Constitution. Article 1(1) of the Constitution provides as follows-

“All power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

That is an affirmation of sovereignty by the people of Kenya, and it is clear where the sovereignty lies.

Article 1(2) of the Constitution goes on to say- “The people may exercise the sovereign power either directly or through their democratically elected representatives.”

The important provision of Article 1, which I wish to emphasize, is the next provision, Article 1(3) of the Constitution. It says-

“Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution-

constitutional process, but it had no time limit. The process of that appointment had the luxury of time; it could take as long as it needed to take. It then made room for judicial interventions during the process of appointment of the Chief Justice.

I have stated and I will emphasise that impeachment proceedings are time-bound. If they are not concluded in time, we would then be faced with a ridiculous situation where somebody may run to court and say that “Assembly X” or the Senate of the Republic of Kenya did not complete its mandate on time.

I believe I was seated here a few months ago when the impeachment proceedings of the Deputy President of the Republic of Kenya were being conducted and that was an important consideration. There are strict timelines that guided many of the directions that Mr. Speaker you made during those proceedings. I urge you to call on that wisdom. If you are persuaded to consider this as a preliminary issue, that because of the strict nature of the timelines, then the role for court is ex post facto considerations of completed processes of impeachment.

There is a decision that has been referred to, which we, advocates, all know. Mr. Speaker, Sir, I am glad that you are an advocate and I am sure you are familiar with the decision. It is a decision that was referred to in the submissions by the Governor. That is the decision of Lord Denning in the famous case of MacFoy versus United Africa Company Limited. In citing that decision, the Counsel for the Governor sought to persuade you that since the proceedings are a nullity, then you should not proceed any further with these impeachment proceedings.

Mr. Speaker, Sir, I wish to rely on that decision in an attempt to persuade you that it is, indeed, the proceedings before the High Court of Kenya in Meru that were a nullity, coming as they did, contrary to the established law and interpretation of the modern doctrine of separation of powers. Prior to the completion of the impeachment proceedings that decision or references to that decision are a nullity. Therefore, you should disregard that decision and proceed.

Mr. Speaker, Sir, I had a few passages from the decision. The learned Counsel for the Governor seems to be suggesting that the Judge of the High Court, in some way, may have been directing this House as to what to do with its orders. I submit that this House is completely independent under the Constitution of the Republic of Kenya. Therefore, you should be guided properly as you consider this preliminary issue.

In conclusion, I wish to state that this is not a preliminary issue. It is based on contested issues of fact which we should then get the opportunity to look into.

The second issue that I wish to respond to is an issue that I was a little bit concerned when I first encountered it. That is the submission that has been made by my learned colleagues for the Governor, and they took some time on it. They said that there were no sittings of the County Assembly of Isiolo on 18th and 26th June, 2025. They have used that submission in support of several grounds of their appeal, and I wish to respond to that. I wish to ask the House to apply it to all instances where they have made reference to the fact that, indeed, there were no sittings on 18th and 26th June, 2025.

With tremendous respect to the Governor and his team, I wish to submit that, that argument is self-defeating. It is a self-defeating argument if you look at it from this perspective.

Mr. Speaker, Sir, it is the proceedings of 18th and 26th June, 2025, of the County Assembly of Isiolo that the Governor went to the High Court in Meru resulting to the decision of Mr. Justice Nyaga sitting in the High Court in Meru, which set out--- The order arising from Mr. Justice Nyaga’s decision is on pages six and seven of Volume No.3 of the Governor’s documents. The ruling itself is to be found between pages 13 and 37 of Volume No.4.

Having based substantive legal proceedings on the proceedings of the County Assembly of Isiolo on 18th and 26th June, 2025, it then cannot fall from the Governor’s mouth to come here before you this morning and assert that there were no proceedings. They have based substantive legal proceedings on the fact that there were proceedings. They got certain orders from the High Court in Meru, which orders they seek to bring before you and urge you to declare the proceedings a nullity. I submit that they cannot.

For the completeness of the record, an estoppel arises against them approbating and reprobating in the manner in which they do. For the purposes of my submission, an estoppel is a legal principle which precludes a person from asserting something contrary to their previous action or statement.

The contrary provision is that there were no proceedings. The previous action is that they took those proceedings to the High Court, persuaded a judge of the High Court that there were proceedings and obtained orders. They cannot do both. For that reason, I submit that, that ground must fail.

There is the issue that my good learned friend, Mr. Theuri, brought up. I wish to crystal that as a threshold issue. The short and sharp answer to the threshold issue is that the determination of whether or not a Motion surpasses the threshold required in law requires the consideration of testimony of evidence from both sides.

Mr. Speaker, Sir, the consideration of evidence must of necessity include the testing of that evidence. There are witnesses that the Governor has brought and their testimony was referred to in support of this submission. We, advocates, who are present for the County Assembly, wish to test that testimony. We do not believe that what has been stated in those statements is correct.

Those facts are, therefore, contested. If they are contested facts, they then cannot form the basis in law or otherwise for a preliminary issue. That must go on full trial. In the context of these proceedings, that means the hearing of the Motion that has been brought.

Mr. Speaker, Sir, one of the reasons the Governor gave in support of the submission that the threshold has not been surpassed was the fact that the HANSARD reports in support of those two proceedings were not signed. We note that one of the Governor’s witnesses is the Clerk of the County Assembly of Isiolo. That is most unusual in the circumstances because it is the Clerk’s responsibility to sign HANSARD reports.

Mr. Speaker, Sir, we look forward to the opportunity to test the testimony of the Clerk and get the Clerk’s explanation. We believe this House will benefit from the explanation from the Clerk, who is charged with the primary responsibility of certifying those reports, as to why those reports were not certified. The Clerk is a witness. He has put in a witness statement or an affidavit and we wish to test his testimony. It is my

submission that with the facts contested as they are, it is then difficult to use those facts to make a determination on the preliminary issue.

The next issue that I wish to submit on and emphasize is that the material that the Governor wishes to rely on for his preliminary issue is the same material that the Governor has brought forward, or has brought or seeks to rely on, as testimony in opposition to this Motion. I wish to refer you to Volume No.2 of the Governor's response to the Motion that is before you. In Volume 2, there is the statement of one Salad Boru Guracha on page 24, which runs all the way to page 32. Salad Boru Guracha is the Clerk of the County Assembly of Isiolo.

As I have said, in a most unusual way, he is a witness for the Governor. He makes certain averments in that affidavit, which we need to test. Those averments have been repeated by other witnesses. It is those averments that have been relied on by my learned colleagues on the other side, in support of their assertion that there is, indeed, a preliminary issue that requires consideration and needs to be determined as a preliminary issue.

Mr. Speaker, Sir, I wish to cede the remainder of our time to my colleague, Mr. Mawira. As I take my seat, I wish to make the following suggestion. It is apparent in a rather blatant manner that the issues that have been brought as preliminary issues before you are not preliminary issues, whereas they may be issues that are fit and proper for the determination of this House, but they are not fit and proper for determination as preliminary objections.

My suggestion is that the preliminary objections be dismissed and that the Governor has an opportunity to ventilate those issues as in his evidence in opposition to the Motion, and that this House then makes a determination on those issues once it has had the benefit of hearing testimony from both sides and both sides have had an opportunity to test that testimony.

I am much obliged.

Mr. Speaker, Sir, my name is Mwereru Boniface Mawira. I will take the remaining time to buttress the submission that have been made by learned senior.

For most, Mr. Speaker, Sir, and Members of this House, it is not contested that there is no conservatory order stopping the Senate from considering the Impeachment Motion that is before you. There is no order by court injuncting or enjoining this House not to proceed with the business of the hearing. What the Governor is challenging or impugns is the validity or otherwise of the Impeachment Motion that is before you.

I submit that the question of validity of the Impeachment Motion is a question of interpretation and is reserved for the judicial arm or branch of Government at the opportune time. As my learned senior, Mr. Nyamodi, has already submitted, we have authorities in the submission that we filed in response, and this honourable House has given rulings in previous matters, including the previous ruling in the matter of the impeachment of the Governor of Kericho on the legislative processes that are before Parliament.

The moment this House or Parliament is seized with a resolution by a county assembly to remove a governor from office, this House becomes irreversibly seized of

that impeachment motion and no order of court can stop this honourable House from conducting its business.

More importantly, our position has been adopted not only by the Senate or this Parliament, but by other parliaments world over. We have authority in the report of the Committee on the proposed removal from office of the Governor of Embu County, that the Senate becomes irreversibly seized of the matter, the moment the Speaker of the Senate receives a letter from the speaker of the county assembly communicating the resolution of the assembly to remove a governor from office. The committee went ahead to quote similar positions adopted by parliaments in other jurisdictions, including Ghana, Sri Lanka and the United States.

The position that has been taken by this House in previous impeachment proceedings has been adopted by the highest court in the Republic. The Supreme Court in the matter of the former Governor of Embu County, Martin Nyaga Wambora and the Court of Appeal have agreed with this House that the judicial arm of the state cannot direct Parliament on what to do and what not to do.

Mr. Speaker, Sir, therefore, it follows that at the opportune time when this honourable House has conducted its proceedings, these proceedings will then fall before the judicial arm of the state. At that time, the judicial arm of the state will have every opportunity to test the proceedings of this House for constitutional compliance.

It is common ground that the proper judge of compliance with the Constitution and the Standing Orders of this House and the statutes relating to removal proceedings of a governor is the Judiciary. The question or the point that is not agreeable by both sides is, at what point the courts can stop an inquiry for an ongoing constitutional process that is before the legislative assemblies.

The Supreme Court in the matter of Martin Nyaga Wambora had occasion to deliberate on this issue. On pages six and seven of our submissions, you will find an exposition of what the Supreme Court said. It explicitly forbids the courts from granting orders that stop ongoing proceedings that are before legislative assemblies.

I will quote what the court said on page 7. It states- “No Governmental agency should encumber another to stall the constitutional motions of the other. The best practices from the comparative lesson signal that the judicial organ must practice the greatest care in determining the merits of each case.”

A question then arises. The governor impugns or challenges the validity of the impeachment motion due to the validity of the court order that was given, yet the court order which is the basis of the challenge that the governor has put up to the propriety of these proceedings is also in question. The validity of that court order is in question because the highest court in the Republic has affirmed what this House has stated on numerous occasions; that the judicial arm of the State, though it can intervene to stop or to check for constitutional compliance, that process before the legislative assembly should be left to run its full course, and at the opportune time, the judicial arm of the State can intervene to check the propriety of those proceedings.

Mr. Speaker, Sir, Section 5 of the Judicial Act provides for the hierarchy of laws in our Republic. The Constitution is at the top. The apex court in the Republic as per our Constitution is the Supreme Court. The Court of Appeal is next. The decision of the Supreme Court as per Article 163(5) of the Constitution, are binding on the High Court. The same goes for the decision from the Court of Appeal. The question, therefore, is: can these honourable House be stopped by a court that has disregarded binding precedent? Can this court be stopped by a court that itself is lacking in jurisdiction? Our answer to that question is that you should proceed unhindered, undeterred and render a decision or determination on the impeachment Motion on the merits, upon hearing the witnesses that are to be called by the respective parties.

The danger is, if this honourable House was to terminate the proceedings at this stage, then it would set a very dangerous precedent. That dangerous precedent is that all that a governor would need to do is to move to court and obtain an order, either quashing the impeachment proceedings before they even begin or stopping this House from considering the impeachment Motion before it is even seized with that impeachment Motion. Therefore, the Senate would have abdicated its role as a defender of devolution and its oversight mechanism in the removal from office proceedings of county governance.

Mr. Speaker, Sir, as you deliberate on that issue, we sound that caution that whatever is established today, will have an implication on future impeachment processes that will be brought before this House.

On the second ground, Counsel for the Governor has referred to affidavits by the Clerk of the Assembly and the AP Commander of Isiolo County. All these affidavits have been referred to, to persuade you that there was no sitting by the Assembly on the 26th June, 2025, when the impeachment Motion was approved by the County Assembly. The question that arises, is whether the contents of those affidavits are to be believed without testing the evidence of those witnesses under oath.

So, the way I see it, the Governor is asking for a full trial. By making a reference to those affidavits, it must be taken that the Governor concedes that, that preliminary objection is not based on a pure point of law that can be canvassed by counsel without reference to affidavits by witnesses. The reason we file affidavits before you is to give advance notice to the other party, so that the other party can prepare on how to test the truthfulness, credibility and veracity of those witnesses, when they take the stand to give evidence before this House.

Mr. Speaker, Sir, the contents of those affidavits, the depositions that are contained in those affidavits, would have to be tested by way of cross-examination of the witnesses for this honourable House to make a conclusion on that question as to whether there was a sitting. The same goes for the HANSARD that is impugned by the Clerk of the County Assembly on oath. With regard to the question of the alleged forgery of the HANSARD, all the Counsel of the Governor has done, is to make reference to an affidavit by a witness. Counsel was submitting on a preliminary on what is supposed to be a preliminary point of law. It is no longer a preliminary point of law, if counsel does not restrict himself and now takes the posture of the witness and testifies on behalf of a

witness, on what they have deponed under oath in an affidavit. At the opportune time, we will be praying to cross-examine those witnesses in order to establish the truth.

The further question that arises, as I conclude, is the Clerk of the Assembly, under the County Assembly Services Act, is required to render expert, non-partisan advice to the Speaker and to the House on procedural matters and on all other matters that are before the House. We will be craving for an opportunity to cross-examine the Clerk on all the issues that counsel has alluded to, in trying to persuade you, Hon. Speaker and the House, that you dispose of the issue of whether there was a sitting and whether there was forgery of the HANSARD at this preliminary trial.

A mini trial that the Governor requested for - a trial within a trial - is not necessary if the issues that are to be canvassed during that mini trial, can be established in the full trial. The issues of the sitting of the Assembly, alleged fraud and alleged forgery are matters that belong to the full trial. It is for the Governor to prove that, indeed, there was forgery because he is the one who alleges forgery of the HANSARD report and that there was no sitting. It is for the Government to prove, through evidence, that is going to be tested by way of cross-examination at the trial.

Therefore, reducing that issue - and it is a very germane issue - of the cheating and alleged forgery to a matter that can be handled at this stage without leading evidence, is not only inappropriate, but against the best interest of justice. It is because the County Assembly will not have the opportunity to cross-examine the witnesses that are being called and whose affidavits have been referenced to by the Governor's council in making that preliminary point.

In conclusion, it is only after a lengthy and a drawn-out hearing in the main trial that all these issues that are couched as preliminary objections, can be sufficiently addressed.

I will say one last thing on that issue of the court order before I sit and give a few minutes to my colleague, Mr. Muriuki. The court order that the Governor has alluded to, is not to be looked at just as a standalone issue. It is essentially an attack on the jurisdiction of the House to hear the impeachment Motion that this House is seized of. The question, as I said before, is if a court whose jurisdiction is challenged--- In fact, Mr. Speaker, Sir, I was in those proceedings and the jurisdiction of the court was challenged. The court has not rendered a decision on a preliminary objection that was filed, but the court proceeded to grant the orders that were granted.

Can a court whose jurisdiction is challenged and which court, the apex court in the Republic together with the Court of Appeal, have held that, that court is bereft of jurisdiction, take away the jurisdiction of this House, which is constitutional in nature? The jurisdiction of this House to oversight county assemblies is constitutional in nature. Can a court acting in excess of jurisdiction take away the constitutional mandate of this House?

As Mr. Nyamodi quoted just before I took the stand, the decision on the validity of that court order comes into play. There is no need for that court order to be set aside. The moment that court order was given by a court that has disregarded binding precedence from the Supreme Court, from the Court of Appeal and acted in excess of jurisdiction, that order is a nullity in law.

So, much as the court order says that the proceedings before the County Assembly were a nullity in law, the court order itself is a nullity in law. There is no further order of court that is required to set aside that order, because that order itself is nullity in law; it cannot stand.

Mr. Speaker, Sir, I urge you, as I conclude, not to accede to the request by the Governor's lawyers to take away the jurisdiction of this honourable House on this important question that is before you for determination.

I will give the remaining minutes to my colleague, Mr. Muriuki.

Mr. Speaker, Sir, and esteemed Members of this House, my name is Mr. Erick Muriuki. I am privileged to appear before you once again. I represent the County Assembly of Isiolo.

Mr. Speaker, Sir, to continue with our submissions where my colleague has left off, the question that should seize this House and the Hon. Speaker when you go to make your determination is this: On a balance of conveniences, what ought to happen?

We submit that this House ought to proceed with these proceedings because, as has been held in numerous court decisions, the Governor will have the opportunity to challenge these proceedings in court. However, neither the court nor this House can freeze the statutory and constitutional timelines that are set for impeachment proceedings.

So, allowing the preliminary objection in the way that the Governor's team asks this House to do would irreparably prejudice the County Assembly. This is because there is a chance for the Governor to challenge these proceedings, but there is no chance for the County Assembly to reinstate or to pause this process and then come back.

The proper time to question the validity of impeachment proceedings, as has been ably submitted by my senior, Mr. Nyamodi, is after the process is complete. This is what the court held in the case of Hon. Kawira Mwangaza versus the County Assembly of Meru.

Mr. Speaker, Sir, this position had been earlier held in the Justus Kariuki Mate matter. Allow me to read an excerpt from the decision of the Court of Appeal Mwangaza versus County Assembly of Meru and Another, 2023 KECA-

“We observe that the applicant’s right to be heard and to defend herself on the allegations made against her in the impeachment debate at the County Assembly of Meru are provided under the Standing Orders of the County Assembly. If she is impeached

she will have another opportunity to present, her case before the Senate during the hearing of the impeachment Motion.

Even after the Senate makes its decision the applicant still has the avenue of petitioning the court for an appropriate relief if the decisions were to go against her. We are, therefore, of the considered view that the applicant’s right to be heard will not be circumscribed. Enough said, this court lacks jurisdiction to consider the application before it for the reasons stated in the ruling.”

Mr. Speaker, Sir, that is the Court of Appeal speaking. The second question that this House should ponder is where the public interest is in this matter of the preliminary objection. This is an important question. The impeachment process has commenced.

The Supreme Court of Kenya and the Court of Appeal have in very clear and no uncertain terms forbidden lower courts from granting the kind of order the Governor has brought here today claiming to rely on to scuttle these proceedings. Even where such orders are issued, what does the Supreme Court of Kenya say? It says should those orders be issued in error, then the Court Assembly is entitled to not immediately comply with them.

Mr. Speaker, Sir, these are not my words, but of the Supreme Court of Kenya in the Mate decision.

Paragraph 95 of that decision found on page eight of our submissions, the Supreme Court says –

“It is our understanding that the exceptional circumstances of this case with a complex scenario of justicabilities from contracted standpoints would lend justification to the non-effectuation of contempt orders at the beginning and consequently we would accommodate the reality of there not having been immediately compliance as would otherwise be required.”

The Supreme Court is recognizing that sometimes court orders are issued in error and where the effect of those orders is to encumber a legislative House from performing its duties, the Supreme Court is accommodating the reality that those order do not have to be immediately complied with.

Mr. Speaker, Sir, on this basis we, therefore, submit that it in the public interest that this House dismisses this view and proceeds to hearing bearing in mind what the Supreme Court and the Court of Appeal have said.

I want to touch on the issue of forgery that has been alleged in the Governor’s preliminary objection. The only submission I will add to what my colleagues have said-- -

(Interruption of submissions on preliminary objections by the County Assembly team)

Counsel for the County Assembly, just take your seat I have a communication to make.

I, therefore, direct that the County Assembly may utilise its remaining 10 minutes, so that the Senate shall adjourn at 1.10 p.m. or such earlier time as the County Assembly concludes its submissions.

The Senate then, will resume sitting at 2.30 p.m. when the Governor's Counsel will have his 10 minutes to respond before the Senate proceeds to make a determination on the preliminary objection. It is so directed.

Counsel, you may proceed to utilise your 10 minutes. (Resumption of submissions on the preliminary objections by the County Assembly team)

Thank you, Mr. Speaker, Sir. As I was submitting, hon. Senators, is that my colleagues have indeed said, and I agree completely, that forgery must be specifically pleaded and proven. The mere word of the Governor's counsel on this pulpit cannot be taken as evidence of forgery.

Indeed, in a decision of the Court of Appeal, Jennifer Nyambura Kamau versus Humphrey Mbaka Nandi, the court held that it is also a settled law that fraudulent conduct must be distinctly alleged and distinctly proved. It is not allowable to leave fraud to be inferred from the facts. An allegation of forgery is an issue of fraudulent conduct.

Hon. Senators, you have been told that it is a preliminary issue whether there was a sitting and whether from that sitting the threshold for impeachment was reached. This issue can only be determined after a conclusive hearing of these proceedings. The Governor's Counsel has stated that they will rely on the affidavits of the Clerk, who is an employee of the County Assembly, to tell you that there was no sitting.

Hon. Senators, as a matter of fair hearing, we must then be allowed to test the veracity of those averments by the Clerk under oath through cross-examination. For that reason, this issue cannot form the basis of a preliminary objection.

Hon. Senators, from the locus classicus on preliminary objections of Mukisa Biscuit, as was again affirmed in the decision that we have quoted in our submissions of Ali Hassan Joho and another versus Suleiman Said Shabhal, for a preliminary objection to succeed, it must be a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.

It cannot be erased if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. I would perhaps just amend that we also include quasi- judicial discretion because this House now sits as a quasi-judicial body.

Hon. Senators, that issue of whether there was a sitting is at length canvassed in both the County Assembly's documents and the Governor's responses. For that reason, it cannot form part of a preliminary objection. We shall be, of course, adducing evidence to show that there were sittings of the Assembly on those two dates, even though there were attempts to scuttle them.

As I conclude my submissions, we shall lead evidence at the opportune time to show that there was vandalism at the offices of the County Assembly and that the said vandalism was orchestrated by the Governor or at his direction. That is the evidence that we shall bring here.

We shall also lead evidence to show that there has been a pattern of attempts to scuttle these impeachment proceedings right from the start and these attempts were made by the Governor. We shall adduce evidence to show that the Governor took every possible step, whether legal or otherwise, to try and stop and scuttle these impeachment proceedings. For these reasons, we submit that it is necessary, and this House ought to rule that the preliminary objection is untenable and that we proceed with hearing of the full case.

My colleague will finalise our submissions.

Mr. Speaker, Sir and Members of the Senate, I will take a few minutes just to conclude our remarks on behalf of the County Assembly. I would just like to highlight the two-faced approach to the contest raised by the Governor. On one hand, the Governor is saying that there was no Motion, no resolution passed that is capable of coming before this Senate---

Counsel, for the sake of the HANSARD, kindly state your name.

Mr. Speaker, Sir, before I proceed, my name is Paul Wafula. I am an advocate and I am part of the team representing the County Assembly. Given the disruption, I kindly request that I be added some time since I have not utilized my time.

Four minutes.

Most obliged. I kindly request to conclude the remarks of the County Assembly by demonstrating the two-faced nature of the contest that the Governor has raised. On one hand, you are being told that there was no resolution passed by the County Assembly to impeach the Governor. It is for that reason that my learned friends took detailed time to take you through the HANSARD and evidence to show that there was no Motion or resolution that was passed.

On the other hand, they have made it a point to say that there is a resolution, but that resolution has been declared null and void by a High Court order. Ipso facto, what the Governor is saying on the other hand is that the County Assembly sat and passed a resolution, and on second hand, they took that resolution and went to the court, where the court adjudicated on that resolution and found it to be null and void.

Mr. Speaker, Sir, the Governor needs to take a position. Is it that there was no resolution or there was a resolution? You have not been told in any uncertain terms that there is any constitutional or statutory provisions barring this House from conducting its business today. You have not been told that there is court order barring these proceedings. In the absence of those two parameters, it is our submission that there is no preliminary objection capable of being sustained in these proceedings.

As I conclude, you will note from the various remarks made by my learned friends for the Governor and us, that the record of whether or not the County Assembly of Isiolo sat is contested. There is a rebuttable explanation for that. That can only be made when the County Assembly is given an opportunity to present this case.

On that basis alone, we kindly ask this House to disregard the preliminary objection raised in the manner it deserves and it proceeds to hearing.

Thank you.

Hon. Senators, it is now 1.14 p.m., time to adjourn the Senate. The Senate, therefore, stands adjourned until later today, Tuesday, 8th July, 2025 at 2.30 p.m.

The Senate rose at 1.14 p.m.