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.

Services, Senate.

Services, Senate.

(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

Services, Senate. 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:

Mwengi Mutuse, OGW, MP dated 26th September, 2024 and received on 27th September 2024 running from page 40 to 42.

(ii) Electronic evidence relating to the Special Motion contained in a flash disk. (iii) Order Papers for 1st October, 2024. (iv) Communication from the Chair No.046 of 2024 issued on Tuesday, 1st October 2024.

October 2024.

(vi) Certified HANSARD and Votes and Proceedings for 1st October, 2024. (vii) Communication from the Chair No.048 of 2024 issued on 2nd October, 2024. (viii) Letters of Appointment of Advocates-

for Morani Manufacturers Limited.

Motion.

Services, Senate.

Public Participation issued on 4th October, 2024.

This communication is long, bearing the situation of Sen. Orwoba I will allow her to take her seat.

Services, Senate.

Article 145 of the Constitution, Standing Order 78 and Part I of the Second Schedule to the Standing Orders of the Senate provide for the procedure to be followed in the hearing and determination of the proposed removal from office, by impeachment, of the Deputy President. Specifically, Article 145(3)(b) of the Constitution and Standing Order 78(1) of the Senate provide that the Senate may, by resolution, appoint a Special Committee comprising eleven of its members to investigate the matter.

Hon. Senators will recall that at the sitting of the Senate held on Wednesday, 9th October, 2024, the Motion for the establishment of a Special Committee was deemed to have been withdrawn pursuant to Standing Order 70. This, therefore, paved the way for the investigation on the proposed removal from office, by impeachment of His Excellency the Deputy President of the Republic of Kenya to be held in Plenary.

Hon. Senators, ladies and gentlemen, by way of a status update, pursuant to Rules 4(a) and 6 of the Rules of Procedure when considering the proposed removal of the Deputy President in Plenary, the Senate invited the Deputy President to appear and be represented before the Senate during its investigation.

The Senate further invited the Deputy President, if he so chooses, to appear before the Senate, to file an answer to the Charges with the Office of the Clerk of the Senate by

(ii) the mode of appearance before the Senate; whether in person, by advocate or in person and by advocate;

(iii) the names and addresses of the persons to be called as witnesses, if any, and witness statements containing a summary of the evidence to be presented by such witnesses before the Senate; and

(iv) any other evidence to be relied on. Pursuant to Rules 4(b) and 7 of the Rules of Procedure when considering the proposed removal of the Deputy President in Plenary, the Senate notified the National Assembly of the date for the commencement of the investigation and invited the National Assembly to designate Members of the National Assembly, who shall appear and represent the National Assembly before the Senate during the investigation.

The National Assembly was further invited, if it so chooses to appear before the Senate, to file with the Office of the Clerk of the Senate by 5.00 p.m. on Monday, 14th October, 2024, setting out documentation of the following-

and represent the National Assembly in the proceedings before the Senate;

(ii) indicating the mode of appearance before the Senate; whether in person, by advocate, or in person and by advocate;

(iii) indicating the names and addresses of the persons to be called as witnesses, if any, and witness statements containing a summary of the evidence to be presented by such witnesses before the Senate; and

(iv) specifying any other evidence to be relied on. Hon. Senators, ladies and gentlemen, on 14th October, 2024, the Office of the Clerk of the Senate, received a response, Ref. No. SW/PET/153/VO/EN/01/2024, and dated 14th October, 2024, to the Invitation to Appear issued to the Deputy President, from

Services, Senate. M/s Swanya Company Advocates, who indicated that His Excellency the Deputy President had appointed the firm to represent him in the proceedings before the Senate and that the Deputy President would also appear in person and by advocates. The letter also indicated the list of Counsel representing His Excellency the Deputy President and the list of witnesses for the Deputy President.

Similarly, on 14th October, 2024, the Office of the Clerk of the Senate received a response, Ref. No. NA/CAN/CORR/2024(562), and dated 14th October, 2024, to the Invitation to Appear issued to the National Assembly, from the Clerk of the National Assembly, indicating that M/s G & A Advocates LLP, had been appointed to represent the National Assembly and that the National Assembly would appear in person and by advocates. The letter also indicated the Members of the National Assembly representing the National Assembly in these proceedings and the witnesses for the National Assembly.

Pursuant to Rule 8 of the Rules of Procedure when considering the proposed removal from office of the Deputy President in Plenary, on Monday, 14th October, 2024, the Clerk of the Senate furnished each party with the documentation filed by the other party in accordance with Rules 6 and 7 of the Rules of Procedure.

Hon. Senators, ladies and gentlemen, the Hearing Programme which has been appended to today’s Order Paper, details the various activities in the hearing and determination of the matter and the time allocated to each activity. It will be crucial that all the parties comply with the time allocated. I will repeat, it will be crucial, that all parties comply with the time allocated. The parties will be notified of the balance of time on each activity through the Clerks at-the-Table.

In summary, the programme states that after we have dispensed with preliminary matters today, Wednesday, 16th October, 2024, the charges against the Deputy President, as submitted by the National Assembly, shall be read. Thereafter, His Excellency the Deputy President will be given an opportunity to take a plea on the charges. This will be followed by an opening statement by the National Assembly and by the Deputy President.

After the conclusion of the opening statements, the presentation of the case of the National Assembly shall commence. The National Assembly will have a maximum of three hours for presentation of the case and re- examination, while the Deputy President will be allocated two hours for cross examination of witnesses after presentation of the case by the National Assembly. Hon. Senators will be given an opportunity to ask questions or seek clarifications from the National Assembly. This should take us up to the end of today’s sitting.

At the sitting scheduled for tomorrow, Thursday, 17th October, 2024, His Excellency the Deputy President will present his case before the Senate. The Deputy President will have a maximum of three hours for presentation of the case and re- examination while the National Assembly will be allocated two hours for cross examination of witnesses. Hon. Senators will also be given an opportunity to ask questions or seek clarifications from the Deputy President, following which the closing statements by the parties will be made for a period not exceeding one hour each.

As provided for under Rule 27 of the Rules of procedure for removal of Deputy President by impeachment, after the closing statements have been made, the hearing shall

Services, Senate. conclude and the Senate shall proceed into a camera session to deliberate on the issues raised.

The Senate shall thereafter proceed to debate on a Special Motion prior to voting on each of the charges. At this stage, a Supplementary Order Paper will be issued to facilitate this debate.

In accordance with Article 145(7) of the Constitution and Standing Order No.78(8) of the Senate, the voting shall be by all Senators. The Deputy President shall cease to hold office if at least two-thirds of all Senators vote to uphold any impeachment charge. If, however, the vote in the Senate fails to result in the removal of the Deputy President, the Speaker of the Senate shall notify the Speaker of the National Assembly accordingly.

Hon. Senators, ladies and gentlemen, I now invite Counsel for the National Assembly to introduce the legal team of the National Assembly and the Members representing the National Assembly by stating the full name and designation of each person.

You may proceed, Counsel.

Services, Senate.

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.

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:

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“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.

Services, Senate. 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.

Mr. Ndegwa Njiru: 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:

Services, Senate. inclusiveness, non-discrimination, equality, human rights, protection of the marginalised, democracy, and good governance.

Moreover, Articles 73(1)(a) and (2)(b) of the Constitution establish responsibilities of leadership. They provide that the authority assigned to a State Officer, such as the Deputy President, is a public trust to be exercised in a manner that is consistent with the purpose and objects of the Constitution, demonstrates respect for the people, brings honour to the nation and dignity to the office and promotes public confidence in the integrity of the office.

Also, Article 27(4) of the Constitution prohibits all forms of discrimination, including discrimination based on ethnic or social origin, conscience, belief, language and birth.

Further, Article 73(2)(b) of the Constitution provides that decision-making should be objective and impartial and should not be influenced by favouritism and improper motives.

Furthermore, Article 75(1)(c) of the Constitution provides that a State Officer should behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids demeaning the office he holds.

As a matter of constitutional compliance, the Deputy President of the Republic of Kenya, who is the principal assistant to the President of the Republic of Kenya, therefore, is required-

Kenyans in the context of ethnic, cultural, and religious diversity, patriotism, national unity, rule of law, democracy and participation of the people, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; and good governance;

diverse society through the promotion of equality and affording equal opportunities to all Kenyans in appointments to the public service and allocation of public resources; and,

discriminate against any Kenyan based on conscience, ethnic or social origin, language or birth.

However, on diverse dates throughout the last two years, His Excellency Rigathi Gachagua has persistently made utterances threatening to discriminate, exclude and unlawfully deny sections of the people of Kenya and regions of the Republic of Kenya equal opportunities for public service appointments and allocation of public resources.

Besides, the utterances are highly inflammatory and inciteful and significantly undermine national unity and the peaceful co-existence of Kenya’s diverse communities.

To illustrate:

Kenya, His Excellency Rigathi Gachagua made highly inflammatory and inciteful public pronouncements to the effect that the Government of Kenya is a company and that the allocation of government development projects and public sector jobs are based on shares determined by how the populace of the various ethnic communities voted in the 2022 General Elections.

Services, Senate.

Specifically, he stated as follows- “A Government is like a company, there is shareholding. Kuna wale who have invested a lot of shares, kuna wale wameweka kidogo, kuna wale wamekataa, lakini wote ni Wakenya. So, ndio tukasema, kama wewe umeenda kupanda mahindi, ama wacha nipeane example ya ng’ombe kwa sababu niko Kajiado.

Wewe uko na ng’ombe yako ya maziwa. Hio ng’ombe imezaliwa ikiwa njaù. Umeichunga vizuri, umepatia majani, umenunulia dairy meal, umepatia chumvi, umepeleka kwa malisho, umepatia maji, imezaa, imeanza kukamuliwa. Wewe unatakiwa kwanza ukuwe mtu ya kwanza kukamua hiyo ng’ombe na kunywa maziwa.”

His Excellency Rigathi Gachagua emphasized the divisive and inciteful narrative embodied in the above utterances as follows-

“Haiwezekani mtu ambaye alikuwa anakupigia kelele ukichunga hii ng’ombe, na kusema hii ng’ombe ni ile ya kienyeji hakuna haja ya kushughulika naye, hii ng’ombe ni bure haiwezi kutoa maziwa, hii ng’ombe ata ikipona jicho moja, wachana nayo unapoteza wakati.

Saa ile ng’ombe imezaa imetoa maziwa, amekuja na kikombe, amekuja na sufuria, anataka atolewe maziwa. Mimi nikasema hiyo haiwezekani. Nikasema yule mwenye hii ng’ombe na kuichunga na kuitunza, kwanza akamue maziwa, yeye na watoto wake wakunywe. Ile itabaki aitie majirani. Hata yule alikuwa anapiga kelele akisema hii ng’ombe ni bure na haiwezekani kama kunayo imebaki pia apewe, kama hakuna imebaki, atembee. Si namna hiyo?”

His Excellency Rigathi Gachagua made similar remarks at another public forum as follows-

“A Government is like a company. I did not say it is a company, I said it is like a company. In every company, there are shares; preferential shares and ordinary shares. When there is an Annual General Meeting (AGM), non-shareholders do not vote or attend the AGM. When there are dividends to be divided, they are divided according to the number of shares. That is the truth.”

His Excellency Rigathi Gachagua continued the inciteful and divisive utterances at yet another forum where he stated as follows-

“Sisi lazima tungeangalia nyinyi. Hii Serikali ni kampuni na ni ya shares. Si ndio? Ni ya shares. Kuna wenye kampuni, wale wako na shares mingi, wale wako na chache. Kuna wale hawana. Sasa nyinyi mli-invest kwa hii kampuni ya William Ruto na Rigathi Gachagua. Sasa lazima mvune. Yule ambaye alipanda atafanya nini? Si mlipanda? Si mliamuka mapema?”

At another forum in Nandi County, His Excellency Rigathi Gachagua continued the same divisive and inciteful narrative as follows:

“Raia ako pale, niko hapo. Huyu Felix ako hapo. Mimi mnanijua msimamo wangu; ya kwamba, watoto wakiwa wengi, kuna wale kwanza ya kuangaliwa. Si mnajua? Sasa huyu Felix ako pale, ndiye kuunganisha mawaya. Mambo yenu tumepanga. Mambo iko sawa. Chakula iko jikoni, karibu kuiva. Watoto ni wengi, chakula ni kidogo. Iko watoto ya nyumbani, iko wa jirani. Iko namna hio. Na nyinyi mtulie. Chakula ikiiva, sisi ndiyo wenye kupakua. Na watoto tunawajua kwa sura na kwa msimamo. Hatuwezi kuwa

Services, Senate. confused. Kuna mtu hajui watoto wake? Na wiki inakuja, tutatangaza hatua kali ile tutachukua, na ile maneno tumepanga.”

In addition, in September, 2024, during a public rally in Nairobi, His Excellency Rigathi Gachagua made public utterances that incited other communities against the ethnic communities that live around the Mt Kenya region by stating as follows:

“Na mimi mkaniambia nimsaidie Rais kwa kazi. Lakini nikiwa hapo kwa serikari, nikue pia nikichunga mambo ya watu wa mulima. Niendelee kuchunga mambo ya mulima, ama nisichunge? Sasa hio kuchunga mambo ya mulima, inaniletea matatizo. Ati naambiwa mimi ni mkabila. Mimi ni mkabila kweli? Nikichunga mambo ya watu wa mlima, iko makosa? Iko makosa?”

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.

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.

Services, Senate.

Services, Senate.

Your Excellency, Rigathi Gachagua, how do you plead to Ground 2; guilty or not guilty?

The Deputy President of the Republic of Kenya (Hon. Rigathi Gachagua, EGH): Not guilty. Ground 3: Gross Violation of Articles 6 (2), 10 (2) (a), 174, 186 (1), 189 (1) and the Fourth Schedule to the Constitution (Undermining Devolution)

Article 10(2)(a) of the Constitution provides that devolution is a fundamental national value and principle of governance. In addition, Article 6(2) of the Constitution provides that governments at the county and national levels are distinct and interdependent and shall conduct their mutual relations based on consultation and cooperation.

These provisions are supplemented by Article 189(1) of the Constitution, which provides that governments at each level shall perform and exercise their powers “in a manner that respects the functional and institutional integrity of Government at the other level---"

Under paragraph 7(a) of Part 2 of the Fourth Schedule to the Constitution, county governments are responsible for trade development and markets as an exclusive function. Moreover, the Deputy President chairs the Intergovernmental Budget and Economic Council, an essential organ for consultation between the two levels of Government.

On or around 20th September, 2024, His Excellency Rigathi Gachagua, recklessly unmindful of the high calling and dignified status of the Office of the Deputy President of the Republic, unlawfully interfered with the running of Nairobi City County Government by holding a public rally in which he incited citizens against lawful directives of the Nairobi City County Government on the planning and relocation of markets.

Further, His Excellency Rigathi Gachagua publicly disparaged the leadership of the Nairobi City County Government and its decisions.

Moreover, His Excellency Rigathi Gachagua has interfered with the proper discharge of county governments' constitutional functions regarding alcohol control and regulation.

His Excellency, Rigathi Gachagua’s inciteful and demeaning public statements and conduct are impeachable offences to the extent that—

governments.

especially the Nairobi City County government.

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.

Services, Senate.

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.

Services, Senate. 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.

Services, Senate.

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

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acquired 80 acres of land in Meru County.

acquired a dairy farm in Nyandarua County.

Gachagua used his office of Deputy

President to exert influence and connive with unscrupulous Ministry of Lands officials to issue an allotment letter to Wamunyoro Investments Limited, a company that he owns to acquire LR.209/12077 and LR.90923, situated at Embakasi in Nairobi whose value is estimated at KShs1.5 billion or thereabouts.

After that, this company used the fraudulently acquired documents to support a court case at the expense of the legitimate owner of the property.

his proxies were involved in the KEMSA KShs.3.7 billion irregular procurement of Malaria nets that put the lives of millions of Kenyans at risk.

President to corruptly influence unnecessary and expensive renovation of his official residence in Karen and Mombasa running into millions of shillings.

In essence, His Excellency Rigathi Gachagua has chosen personal comfort, extreme luxury, and pomposity at the expense of service delivery to the people of Kenya.

acquired from proceeds of corruption, influence peddling, and money laundering have been provided and relate to the following—

in Nyeri County.

located in Aberdare Ranges.

hotel Argwings Kodhek Road.

companies to trade with the office he holds –

It is a private limited company incorporated in Kenya on 28th May, 2017 under certificate number PVT-RXUP6E. The company deals in building and construction.

The company’s directors/shareholders are—

reasons) at Sidian Bank, opened on 19th February, 2022, with the company directors as the account signatories.

On 18th October, 2022, Bhavika Nathalal Hirani was added as an account signatory and given full mandate to operate the account. Bhavika Nathalal Hirani is a proxy of His Excellency Rigathi Gachagua.

On 23rd January, 2023, the company account received a transfer of KShs47,015,367.75 from the Executive Office of the Deputy President. The payment was supported by—

December, 2022 from the Office of the Deputy President to Agrobriq Investment Limited

Services, Senate. for the proposed Refurbishment of the Deputy President’s official residence at Karen, at a cost of KShs55,559,520.00.

of KShs55,133,265.92 was received on 10/01/2023 as the 1st

Interim payment in respect of the contract ODP/RT/001/2022-2023.

President and Agrobriq Investment Limited for the proposed renovation of the Deputy President’s official residence in Karen. Bhavika Nathalal Hirani signed the document as a Director of Agrobriq Investment Limited.

On 23rd January, 2023, the funds were suspiciously transferred through a transfer of Kshs45,000,000.00 to a related entity (i.e. Vaghjiyani Enterprises Limited).

Shockingly, the account had been dormant for around nine months before it received the payment from the office of the Deputy President, adding to the reasonable suspicion that it was a special-purpose vehicle to siphon funds for His Excellency Rigathi Gachagua.

under certificate number CPR/2012/87037. The company directors are—

a total of Kshs100,262,821.43 from the Office of the Deputy President, characterised by the receipt of multiple transfers.

On 2nd July 2024, the Deputy President’s Office paid Lusona Events Limited part of the abovementioned proceeds of corruption and money laundering in eight transactions in a single day as follows—

S/No Date Amount

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made Kshs22,800,000 in cash withdrawals. Some of the

withdrawals were declared as cash to pay undisclosed beneficiaries. It was suspicious why they preferred cash payments as opposed to bank transfers.

money laundering as most of the money was withdrawn in cash rather than bank transfers, which is the custom for huge payments. His Excellency Rigathi Gachagua is reasonably suspected to be the principal beneficiary of these dubious transactions.

St. Nicholas Rehabilitation and Industrial Training Institute Limited. The company was incorporated on 8th April, 2021 under registration number PVT- AAACMO4. It deals with student rehabilitation and industrial training, trading as St Nicholas Rehabilitation Centre and Psychiatric Hospital. The sole company director is Nicholas Mugambi Maingi. The company operates an account at Equity Bank, opened on 18th August, 2017 with the company director as the sole account signatory.

Between 1st March, 2024 and 5th June, 2024, the account received a total of Kshs21,060,000 from office from the Office of the Deputy President. The funds were suspiciously utilized as follows-

from Umarali Motors Limited for Kshs8.5 million.

account. A cash trail in the personal account revealed that upon receipt of the funds, Nicholas made a transfer Kshs4,660,000 to Umarali Motors Limited on 21st March, 2024. The purported payment to Umarali Motors Limited using two routes raises reasonable suspicion of corruption and money laundering.

Further, prior to receipt of the two payments from the Office of the Deputy President, the account was transacting in minimal accounts, raising suspicions that the entire transaction was a conduit used by His Excellency Rigathi Gachagua to siphon public funds. The payment scheme used typifies money laundering transactions.

From the matters outlined in the preceding parts, it is patently clear that there are serious reasons to believe that His Excellency Rigathi Gachagua, the Deputy President of the Republic of Kenya, using his State office has committed gross economic crimes, namely conflict of interest, abuse of office, conspiracy to commit crimes under-

Crimes Act.

Act.

Your Excellency Rigathi Gachagua, how do you plead to Ground 7, guilty or not guilty?

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

Services, Senate. Ground 8: Serious Reasons to believe that His Excellency Rigathi Gachagua Committed Crimes under Section 132 of the Penal Code and Section 29 of the

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phrase gross misconduct generally refers to behavior that is very unpleasant, disgusting, very rude. This is from the Oxford Advanced Learner's Dictionary.

Therefore, open or public insubordination of the President, who is the head of State and Government under our constitutional framework, is gross misconduct.

As stated in the preceding parts, Article 147(1) of the Constitution designates the Deputy President as a principal assistant of the President, who shall deputize for the President in the execution of the President's functions. His Excellency Rigathi Gachagua has persistently undermined, demeaned, and committed insubordination instead of assisting the President in executing the state executive mandate.

Instead, he has opted to run a smear campaign against the Presidency for political expediency. Further, whereas Article 147(2) of the Constitution requires the Deputy President to perform the functions conferred by the Constitution and any other functions that the President may assign, His Excellency, Rigathi Gachagua, is openly sabotaging the state's efforts in agriculture, including the coffee, tea, sugar, and milk sectors, which the President tasked him to oversee.

To illustrate-

has connived with cartels in the tea sector

to block the Kenya Tea Development Agency (KTDA) from implementing guaranteed minimum returns that would benefit smallholder tea farmers.

has influenced his family members, allies,

associates and proxies to take control of a local cooperative society - name withheld - in Mathira, which they are financially hemorrhaging.

Your Excellency, Rigathi Gachagua, how do you plead to Ground 10; guilty or not guilty?

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

that is, Bullying

phrase gross misconduct generally refers to behavior that is very unpleasant, disgusting, or very rude. This is from the Oxford Advanced Learner's Dictionary. Section 34 of the Leadership and Integrity Act provides that a State officer shall not bully any person. Bullying includes repeated offensive behavior that is vindictive, cruel, malicious or humiliating, and is intended to undermine a person.

For the past two years, His Excellency Rigathi Gachagua has persistently bullied state and public officers. To illustrate-

bullied Kenya Medical Supplies Agency

(KEMSA) officials into awarding a tender for the supply of mosquito nets to Crystal

Services, Senate. Limited, his proxy company. Crystal Limited has submitted a fake billboard with the sole intention of fraudulently acquiring public property.

routinely bullies public officers in national

security organs, whom he subjects to public attacks and humiliation.

routinely summons procurement officers in

ministries and state institutions and instructs them to direct the procurement of goods and services in a particular manner.

who he thinks stand in his way of creating dominance within government and political kingship, and he has severely threatened, intimidated, and harassed them.

President to intimidate public officers and a contractor to divert materials meant for the construction of the Kilifi-Malindi Road to tarmac a private road to Vipingo Beach Resort, a hotel associated with him.

uses his constitutional power as Deputy

President solely to implement sectarian, parochial, and personal interests that seek to profit him.

Your Excellency Rigathi Gachagua, how do you plead to Ground 11; guilty or not guilty?

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

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.

Mr. Ndegwa Njiru: 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.

Services, Senate. 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

Services, Senate. 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. Mr. Ndegwa Njiru: 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. Ndegwa Njiru: Mr. Speaker, Sir, the only presumption---

No, we are not going to presume facts. We are not. Mr. Ndegwa Njiru: 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

Services, Senate. 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.

Services, Senate. 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. Eric Gumbo: Mr. Speaker, Sir, I could respond shortly after the lunch break.

Under Rules, we have to rise at 1.15 p.m. Mr. Eric Gumbo: 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.