Wednesday, 16th October, 2024 Special Sitting

Clerk, do we have a quorum?

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

Hon. Senators, please take your seats. I am informed that we do have quorum now. We will now proceed with our session.

Clerk, proceed to call the first Order.

Sen. Thang’wa and Sen. Okiya Omtatah, kindly take your seats.

(The House went into an in-camera session) (End of in-camera session)

Hon. Senators, please, take your seats. We need to get ready for the next session. Clerk indicate that we have all the parties within the precincts of Parliament. If they are here, they should be ushered into the Chamber. Ring the bell for 10 minutes so that you settle the parties to get this hearing ongoing.

Serjeant-at-Arms, ring the bell for 10 minutes.

Hon. Senators, the ten minutes are over. Kindly take your seats. Members of the public are now allowed to take to the Gallery and the media is also allowed to start broadcasting.

Hon. Senators, please take your seats. Clerk, can you confirm that all parties are in the Chamber?

So, we will give five more minutes for the parties to settle in. Hon. Senators, two more minutes for the parties to settle in.

Hon. Senators, I am informed that the parties are now settled and ready for this hearing. Therefore, I will allow the Clerk to call the first Order.

Sen. Oketch Gicheru and Sen. Beth Syengo, why are you exchanging seats? Clerk, proceed.

Hon. Senators, ladies and gentlemen, having dispensed with the Pre-Hearing meeting of Senators, which was a closed session, it is now time to commence the proceedings on the Proposed Removal From Office, By

Impeachment, of His Excellency Rigathi Gachagua, EGH, the Deputy President of the Republic of Kenya.

You will recall that by a letter, Ref. No.NA/DLP/TBO/MTS/2024/ (025), dated 8th October, 2024, the Speaker of the National Assembly informed the Speaker of the Senate that at a sitting of the National Assembly held on Tuesday, 8th October, 2024; pursuant to Article 145(2) as read with Article 150 of the Constitution, the National Assembly approved a Motion for the Removal from Office, By Impeachment, of His Excellency Rigathi Gachagua, EGH, the Deputy President of the Republic of Kenya.

The Speaker of the National Assembly forwarded the following documents to the Senate, being the record of proceedings of the National Assembly and the evidence adduced in support of the impeachment Motion:

Mr. Speaker, Sir, for the National Assembly, the legal representation is as follows:

The Hon. James Orengo - Senior Counsel, leading the team. Mr. Paul Nyamodi - Legal Counsel Eric Gumbo - Legal Counsel Dr. Muthomi Thiankolu - Legal Counsel Mr. Moses Kipkogei - Legal Counsel Mr. Peter Wanyama - Legal Counsel Mr. Ken Meli - Legal Counsel. Mr. Mwangi Kang’u - Legal Counsel. Mr. Speaker, Sir, this team is further assisted by a team of our younger colleagues-

Mr. Alex Mbaya - Legal Counsel Mr. Elias Ouma, Legal - Counsel Mr. Eric Muriuki, Legal - Counsel Mr. Boniface Mawira - Legal Counsel Ms. Joan Jeruto - Legal Counsel From the National Assembly, we have-

I similarly now invite the Counsel for His Excellency, Rigathi Gachagua, EGH, the Deputy President of the Republic of Kenya to introduce the legal team representing His Excellency the Deputy President by stating the full names and designation of each person.

Counsel, you may proceed.

Mr. Speaker, Sir and hon. Senators, the legal team representing His Excellency the Deputy President of the Republic of Kenya who is present in this august House are as follows:

Hon. Senators, ladies and gentlemen, on behalf of the Senate, I welcome the National Assembly and its team, His Excellency Rigathi Gachagua, EGH, the Deputy President of the Republic of Kenya and his team, members of the public and the media to the Senate and to these proceedings.

As you are aware, Article 118 of the Constitution mandates Parliament to conduct its business in an open manner; and that its sittings and those of its committees shall be open to the public.

The hearing of the proposed removal from office of the Deputy President pursuant to Article 145 of the Constitution, Standing Order No.78 and the Second Schedule to the Standing Orders of the Senate is a matter that has generated immense public interest. The Senate, in this particular hearing, has facilitated members of the public who are interested in the proceedings to access its galleries. However, I draw the attention of the members of the public who are seated in the galleries to Rule 28 of the Speaker's Rules, which state as follows:

“Visitors in the galleries shall remain seated, shall not applaud, comment audibly, make signs, eat, sleep, read books, newspapers, or other material, except the order paper for the day, or create any disturbance.”

I request the members of the public to observe the aforesaid rules. Any member of the public who contravenes the Speaker's Rules will be invited to stern action against them, which includes expulsion from the precincts of Parliament. The office of the Clerk of the Senate is directed to ensure compliance with the Speaker's Rules.

Hon. Senators, ladies and gentlemen, I now invite the Clerk to read the particulars of the allegations against His Excellency Rigathi Gachagua, EGH, the Deputy President of the Republic of Kenya.

Clerk, you may proceed.

Mr. Speaker, Sir, my name is Ndegwa Njiru. Perhaps before we proceed to the next session, my Senior Counsel, Paul Muite, raised an issue that we have an objection to, in terms of the appearances of legal Counsel appearing for the National Assembly.

Mr. Speaker, Sir, our objection is in line with the conduct of this House and the records bear us witness. We will also be relying on an authority in our objection.

We are raising an objection to the appearance of my senior advocate, legal Counsel, James Orengo, to represent the National Assembly in these proceedings. This is the basis of our objection: That my learned friend, senior James Orengo, is a full-time serving State officer as per Article 260 of the Constitution, as read together with Section 26, subsection 2, of the Leadership and Integrity Act, which bars a full-time State officer from engaging in meaningful employment.

Mr. Speaker, Sir, it would be prejudicial to our client if this House were to allow my learned friend, James Orengo, SC, to represent the National Assembly in these proceedings.

Just recently, this House which is a House of record will bear us witness that during the impeachment of the Deputy Governor of Kisii County, the County Assembly attempted to appear by legal Counsel represented by one hon. Osoro. An objection was raised by my learned friend, Sen. Cherarkey, which objection was sustained by this House.

Mr. Speaker, Sir, our objection is further premised in the High Court decision, that is, the High Court Constitutional Petition 204 of 2019, where Justice Ogola barred His Excellency the Governor of Siaya County from representing the then Director- General of Kenya Ports Authority (KPA) , Mr. Daniel Manduku.

The judgment is before this honourable House that a person who is engaged in full-time employment cannot then purport to appear and represent a party before this Assembly. It will raise a serious conflict of interest. The same will prejudice our client

and it is also in violation of clear provisions of the law as cited. In that respect, we invite you to uphold our objection before the charges are read out to our client.

Mr. Speaker, Sir, in this ruling that I have just cited, the court was of the view that a person who is engaged in full-time engagement as a State officer cannot and is barred from representing a party in a private capacity. We so beseech you to uphold our objection.

I am most humbled.

Counsel for His Excellency, if you look at our programme, the preliminary objections were to be raised after His Excellency has taken plea. Therefore, we will allow the Clerk to read the charges. Before anything else, I will allow the Counsel for the National Assembly to respond, and, then thereafter, I will make my ruling. We will then take it from there.

I am most obliged, Mr. Speaker, Sir.

PART A - GROSS VIOLATION OF THE CONSTITUTION OR ANY OTHER LAW PURSUANT TO ARTICLE 150(1)(B)(I) OF THE CONSTITUTION- Ground 1:

Clerk, just pause for a minute. Hon. Senator, just put your mobile phones on silent mode, please. Proceed, Clerk. The Clerk of the Senate

: His Excellency Rigathi Gachagua’s utterances throughout the past two years, undermine the promotion of national unity in the context of Kenyan society's multi-ethnic demography and multi- cultural diversity.

In addition, they have the potential to alienate, isolate, and create disharmony among the various ethnic communities of Kenya.

In Summary, His Excellency Rigathi Gachagua’s above mentioned utterances over the last two years, are impeachable offences to the extent that they grossly violate Articles 10 (2) (a) , (b) and (c) ; 27 (4) , 73 (1) (a) and (2) (b) ; 75 (1) (c) , and 129 (2) of the Constitution and Article 147 (1) , as read with Article 131 (2) (c) and (d) of the Constitution.

Specifically, His Excellency Rigathi Gachagua’s divisive and insightful public utterances over the last two years:

a) Are incompatible with the high calling and dignified status of the Office of the Deputy President of the Republic of Kenya.

b) Can stir ethnic hatred and promote ethnic balkanization of the Republic of Kenya.

c) Falsely alluded to a non-existent Government policy to discriminate and marginalize the populace of the regions and tribes that did not vote for the current administration in the 2022 general elections.

Your Excellency Rigathi Gachagua, how do you plead to Ground 1; guilty or not guilty?

The Deputy President of the Republic of Kenya

: Not guilty.

Clerk, just a minute. I realised what you are reading is fairly long. His Excellency, Deputy President of the Republic of Kenya, if you may so wish, you may sit and when taking the plea, you may stand.

The Deputy President of the Republic of Kenya

: No, Mr. Speaker, Sir. Let me stand.

You may proceed, Clerk.

The Clerk of the Senate (Mr. Jeremiah Nyegenye): Consequently, His Excellency Rigathi Gachagua has grossly violated Articles 6 (2), 10 (2) (a), 174, 186 (1) and 189 (1) of the Constitution as read with the Fourth Schedule to the Constitution.

Your Excellency Rigathi Gachagua, how do you plead to Ground 3; guilty or not guilty?

The Deputy President of the Republic of Kenya (Hon. Rigathi Gachagua, EGH): Not guilty.

the Office of the Deputy President that obligates the Deputy President to obey, preserve, protect and defend the Constitution and all other laws.

Your Excellency Rigathi Gachagua, how do you plead to Ground 5; guilty or not guilty?

The Deputy President of the Republic of Kenya (Hon. Rigathi Gachagua): Not guilty.

The value of the property and wealth that His Excellency Rigathi Gachagua has acquired over the last two years is incompatible with his known legitimate income i.e., Kshs12 million per annum or thereabouts.

His Excellency Rigathi Gachagua has acquired the above mentioned property and wealth using his two sons, Kevin Rigathi Gachagua “Kevin Gachagua” and Keith Ikinu Rigathi “Keith Ikinu” and other close family members and associates as proxies.

His Excellency Rigathi Gachagua and his proxies, especially the two sons, have used the following companies to massively launder money, conceal proceeds of crime, corruption and benefit from influence peddling—

S/No. Company Date of Incorporation Shareholders

Your Excellency, the Deputy President, you may take your seat.

Counsel for the National Assembly, you may proceed to respond to the objection that has been raised by Counsel for the Deputy President.

Perhaps, Mr. Speaker, Sir, just before Counsel responds to my application for efficiency and expediency, permit me also to bring to your attention one more application in respect to the documents that were served upon the Deputy President.

Mr. Speaker, Sir, by a letter that you referred to, sent from the Speaker of the National Assembly to the Speaker of the Senate, the Speaker of the National Assembly submitted the documents that emanated from the National Assembly.

Counsel for the Deputy President, take your seat first. You will have your moment.

Mr. Speaker, Sir, if I could take a few moments this afternoon to respond to the preliminary objection that has been raised. I have three quick issues in

response to that objection. One, the Constitution of Kenya at Article 77 is the primary law that then speaks to restrictions on activities of state officers. In particular, Article 77(1) reads-

“A full-time state officer shall not participate in any other gainful employment”. Mr. Speaker, Sir, that Article introduces one critical variable, “gainful employment”. Gainful employment has been defined within our laws. Specifically Section 26 of the Leadership and Integrity Act has defined what would amount to gainful employment. If I may, Section 26.1 reads-

“Subject to subsection (2), a State Officer who is serving on a full-time basis shall not participate in any other gainful employment”.

It then proceeds at (2) to say- “In this section, ‘gainful employment’ means work that a person can pursue and perform for money or other form of compensation or remuneration, which is inherently incompatible with the responsibilities of the state office or which results in the impairment of a judgment of a state officer in the execution of the functions of a state office or results in a conflict of interest in terms of Section 16”.

Our response; there has been no assertion that the learned Senior Counsel, James Orengo, by representing a party before this House, has participated in gainful employment. In any case, what evidence has been tendered before this honourable House to speak to that fact?

Mr. Speaker, Sir, that is a question that has also received judicial interpretation. If I may, in the Election Petition No.3/2013 filed in the High Court in Busia, a similar application was made, objecting to the participation of the Hon. James Orengo, SC, in the proceedings in that matter.

The judge handling that case interpreted both Article 77 as read with Section 26 of the Leadership and Integrity Act and had this to say, at Paragraph 28-

“It had been argued that by representing a party in an election petition, the hon. Senator would be compromising the political neutrality of his office. I would not agree. Section 23 of this Act is a provision on political neutrality expected of appointed state officers. Hon. Orengo holds an elective position. Elected Members of the Senate are politicians. The provisions of Section 23 do not apply to them. So, even if it was to be assumed that by representing the third respondent, Hon. Orengo, SC, is pursuing a political agenda, that would not be inimical to his office as a member of the Senate.”

Mr. Speaker, Sir, I, therefore, submit that unless there is material that will be tabled before this House that by appearing for a party before this House, then the Hon. Mr. James Orengo, SC, would have engaged in gainful employment, that objection does not stand any merit.

Secondly, the second test that has been applied by courts is the test around conflict of interest. Our courts have also had occasion to interpret what amounts to conflict of interest.

In a case determined by a five-judge bench, a case reported in our laws, that is, EKLR 2018, the case of Philomena Mbete Mwilu versus the Director of Public Prosecutions (DPP) and two others; the Bench, in determining and dismissing a similar

application, defined conflict of interest as a situation where one is confronted by two different interests, so that serving one interest would be against the other.

Mr. Speaker, Sir, there has not been any conflict of interest that has been, even in the least, mentioned by the objector to the participation of Hon. James Orengo, SC.

Finally, has there been an indication as to any prejudice that could be occasioned by the participation of the Hon. James Orengo, SC, before this House this afternoon? To the best of my recollection, none has been mentioned. Is Counsel, for instance, saying that the participation of the Hon. James Orengo, SC, before the proceedings in this House would be such that it would fundamentally impair their defense when they get the opportunity to present the case? I am just asking myself. That has not been said. In any case, if that was to be the case and the fear that has been presented, then as advocates, as Counsel, we operate within clear and defined rules.

Those rules are meant to ensure that a party before this House, just like would be a party before any court or any other forum, does not suffer or does not have a compromise to their rights to fair hearing under Article 50. In the absence of any prejudice that has been mentioned before you, we urge that that objection be dismissed.

I have also had occasion to look at the case that was referred to by my learned friend, Mr. Njiru. With respect, that case turned on two critical points. The first one being, that the participation of the Hon. James Orengo, SC, as a Senator in that matter was said to have the potential of compromising his participation in the Senate proceedings because then he was a Senator. However, he is not a Senator as we speak. That marks a significant difference or departure between what led to the finding in that position and what we have before you.

The judge in that specific matter also went on to add that there must also be established a question or a fact of benefit. Again, I reiterate that no indication, evidence or even assertion has been presented before this House to suggest that the Hon. James Orengo, SC, has in any way benefited by being in this House participating as Counsel.

With that, Mr. Speaker, Sir, we urge that that objection be dismissed. I am most obliged.

Thank you. Counsel, for His Excellency, the Deputy President, you may proceed.

Thank you, Mr. Speaker, Sir. In brief response to the submissions by my learned friend, there is no denial that has come from Counsel's defense that, Hon. James Orengo, SC, is here on pro bono basis. That evidence has not been brought. That claim has not been denied. He is, therefore, here as Counsel earning a fee. That is what Section 26---

Senior Counsel, do not go to that line of argument if the evidence of him acting pro bono has not been laid on the Table. Has the evidence of him earning been put on the table?

Mr. Speaker, Sir, the only presumption---

No, we are not going to presume facts. We are not.

Mr. Speaker, Sir, I am well guided, but may be noted and may go on record that the grounds laid by Section 26 (2) , have not been rebutted by the

submissions made by Counsel in as far as the gainful employment in these proceedings is concerned.

Secondly, he is here as the Governor of Siaya County, not as a Senator. As such, the Petition No.3 of 2013 is distinguishable from the fact that he is here as a serving governor. That is what Section 26, subsection (2), speaks to. It is also equally the provisions of Article 77 of the Constitution.

Further to that, Mr. Speaker, Sir, the test of prejudice is a creation by Counsel. It is not the one that Section 26(2), and Article 77 speaks to. The only test is gainful employment. Unless that one is rebutted, the legal presumption unless it is rebutted, is that he is here for a main purpose, to earn a living. I leave that to the House to make a determination.

Permit me once more to move the House with my last and final application, as far as these proceedings are in issue.

Mr. Speaker, Sir, on the 8th of October, 2024, this House was served with a resolution from the National Assembly by the Speaker of the National Assembly, via the letter that the Speaker of the Senate referred to. That letter appears at page 547 to 548 of volume five of the National Assembly's bundle of documents.

Mr. Speaker, Sir, we were then served with two sets of documents, an affidavit, dated the 11th of October, deponed by one Peterson Jomo Muchira. Our objection is that the affidavit did not form part of the documents that were submitted by the Speaker of the National Assembly to the Speaker of the Senate.

It is our argument that this is new evidence. Further to that, we were equally served with a bundle of documents from the National Assembly, which is labeled as volume 8A, also indicated as responses from various Government agencies. Again, this is new evidence that does not find itself at pages 547 to 548 of the bundle of documents submitted to you or to this honourable House by the Speaker.

The prejudice is that our response was exclusively limited to the documents that we were served with. Further to that, it is our argument and our application that these documents will prejudice our case in the sense that they will violate our rights to a fair hearing.

This is trial by ambush by the National Assembly. I refer to the findings of this House in the Hon. Governor Sonko in a ruling delivered by the Speaker of this House on 17th December that barred the County Assembly of Nairobi from introducing any new evidence. It has been the tradition of this House to protect all the parties that appear before it, so that justice will not only be done, but also seen to be done. We move this House to have these documents expunged from record and for the National Assembly be barred from relying on these documents.

Mr. Speaker, Sir, if these documents will be admitted, we shall suffer prejudice in the sense that we shall have no ability or we shall have been denied an opportunity to respond to the same. We urge you to hold that these documents is new evidence and rely on Rule 19 of this House.

Noting that the rules guiding these proceedings today do not provide for how to deal with new evidence as and when the same is brought to the attention of the House.

However, the rules guiding the proceedings in the impeachment of a governor or deputy governor provides that new evidence shall not be admitted.

Mr. Speaker, Sir, further to that, permit me to bring to your attention the findings in the Civil Appeal No.21 of 2014, which was the case of Governor Wambora versus the County Assembly of Embu.

In that case, Justice Odek (may the Lord rest his soul in peace), Chief Justice Martha Koome as then was and Justice Visram held that these proceedings of the impeachment of a President or Deputy President are pari materia to the impeachment of a governor. That is to say they are identical. So, what applies in those rules in the impeachment of the governor can and should equally apply to these rules. Finally, this House being a House of record, we are bound by our previous precedence.

I am most obliged.

Counsel for the National Assembly, you have one and a half minutes to respond. You may respond now or after the lunch break.

Mr. Speaker, Sir, I could respond shortly after the lunch break.

Under Rules, we have to rise at 1.15 p.m.

Permit me to respond after lunch break. Most obliged.

Hon. Members, I will deliver a ruling at 2.30 p.m. then allow the Counsel for the National Assembly to respond to the second limb of the objection.

The Senate rose at 1.15 p.m.