Wednesday, 27th August, 2025 Special Sitting

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

Order, hon. Senators. We now have quorum. So let us get down to today's business.

Clerk, you may 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 Wednesday, 20th August, 2025, I appointed today, Wednesday, 27th August, 2025; Thursday, 28th August, 2025 and Friday, 29th August, 2025, as the days when the Senate will hear the charges for the proposed removal from office, by impeachment, of Hon. (Dr.) Erick Mutai, the Governor of Kericho County.

Vide a Gazette Notice No.11796 dated 21st August, 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. (Dr.) Erick Kipkoech Mutai, the Governor of Kericho County, in plenary. Consequently, a hearing programme has been prepared and appended to the Order Paper for today.

Hon. Senators, ladies and gentlemen, 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, the County Governments Act and the Senate Standing Orders.

Hon. Senators, during the pre-hearing, the parties, if they are present, 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 forthwith.

Consequently, I now direct the parties, all 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 10.00 a.m.

I thank you.

Hon. Senators, welcome back to the open session. Clerk, you may call the first order.

Hon. Senators, ladies and gentlemen, having dispensed with the pre-hearing meeting of the Senators, which was a closed-door session, it is now time to commence the proceedings on the proposed removal from office, by impeachment, of Hon. (Dr.) Erick Kipkoech Mutai, the Governor of Kericho County.

By a letter dated 15th August, 2025, the Speaker of the Kericho County Assembly informed the Speaker of the Senate that at the sitting of the Kericho County Assembly held on 15th August, 2025, the County Assembly of Kericho approved a Motion for the removal from office, by impeachment, of Hon. (Dr.) Eric Kipkoech Mutai, the Governor of Kericho County.

Sen. Maanzo, you may take your rightful seat.

Hon. Members, the Speaker of the County Assembly of Kericho also forwarded the following documents to the Senate being the record of proceedings of the County Assembly and the evidence adduced in support of the impeachment Motion. These are-

Good morning, Mr. Speaker, Sir; Hon. Senators and Hon. Mutai, Governor, Kericho County.

For the County Assembly of Kericho, the representation is as follows-

Now, similarly, I now invite Counsel for the Governor to introduce your legal team representing the Governor.

Mr. Speaker, Sir, Hon. Senators, Your Excellency, the Governor of Kericho County and my colleagues, good morning.

With the permission of my senior colleague, I wish to introduce to you, the legal team representing the Governor of Kericho County. First, I wish to confirm that the Governor of Kericho County, Dr. Eric Kipkoech Mutai is before the House. The following is the legal team-

Senator for Nandi County, take your seat.

Hon. Senators, on behalf of the Senate, I welcome the team for the County Assembly, the team of the Governor, members of the public and the media to the Senate and to these proceedings.

Finally, I now invite the Clerk to call the next Order and thereafter to read the charges against the Hon. (Dr.) Erick Kipkoech Mutai, the Governor of Kericho County.

Allegation 1: Misappropriation, Misallocation and Illegal Drawings of County Revenue and County Finances.

That, on various occasions since his election as a Governor and subsequent assumption of office, the Governor has engaged in various acts of gross violation of Articles 10, 183 and 201 of the Constitution, Sections 102 and 109 of the Public Finance Management Act, Cap. 412A and the provisions of the Kericho County Rating Act, No. 5 of 2019 as follows-

Governor, you may be seated. The Governor of Kericho County (Hon. (Dr.) Erick Kipkoech Mutai) : Thank you, Mr. Speaker, Sir.

Erick Kipkoech Mutai) resumed his seat)

Now, I will call upon the County Assembly. You have 30 minutes to make your opening statement. Thereafter, it will be followed by the Governor's opening statement. It will also take 30 minutes.

Thank you so much, Mr. Speaker, Sir. Before we make the opening statement, there are certain preliminary matters that the County Assembly wished to raise. With your permission, I wish to be given the opportunity to raise them first.

You may proceed.

Thank you so much. Allow me to begin by raising the fairly simple and straightforward preliminary issue. By a letter dated 24th August, 2025, by the firm of H&K Law Advocates, on behalf of the County Assembly---

Sorry, the record may not have caught up my name. My name is Elisha Ongoya for the County Assembly of Kericho. Members of the Senate, on a light note, may wonder whether Mr. Mutuma and I are on this side. We may say that the Cab Rank Rule has placed us on this side today. Mr. Speaker knows that better than I do.

By a letter dated 24th August, 2025, H&K Law Advocates acting for the County Assembly of Kericho requested the Clerk of this House to make special arrangements for one witness who suffers a physical disability in the nature of mobility impairment when that time comes. So that we do not struggle the last minute, I wish that Mr. Speaker directs that those arrangements be made as and when that witness is required to be put on the stand.

Those arrangements are going to be made.

Thank you so much. The second preliminary issue is also relating to another letter dated 24th August, 2025 and addressed to the Clerk of this House. In context, you will notice that among the filings made by the Governor in his defence was a notice of preliminary objection, which was brought to the attention of the County Assembly when the documents were being exchanged at the Clerk's designated area.

In the circumstances, the County Assembly wrote to this House informing it that it will be seeking the leave of this House to file a response to the notice of preliminary objection---

Counsel, that preliminary objection has not been raised yet. It is on record, but it is yet to be raised. You will be given an opportunity to make that application once that preliminary objection has been raised.

Thank you. Having said that, the final is a set of documents that we also wish to be permitted to be circulated to the Senators. I will just lay a brief context for this.

These are documents which, when you were informing the Senators, you drew their attention to the documents that the County Assembly brought to this House accompanying their resolution. Some of those documents, unfortunately, when we were now preparing the volumes for circulation, because of the number of volumes involved, were omitted among the documents that were delivered. Other documents were also referred to the various witness affidavits, and those documents were also omitted when we were produced.

Mr. Speaker, Sir, if you give me permission, I can then draw your attention to the specific documents, so that then you can consider whether or not to allow them.

You may proceed.

Mr. Speaker, Sir, thank you. You will remember you read among the documents that the County Assembly presented to the Senate as payment vouchers for the Department of Agriculture. You also read payment vouchers for the Department of Lands and Physical Planning. Those documents, although accompanying the Motion and duly presented, were not reproduced in the volumes that have been given to the Hon. Senators. We beseech you to grant us leave to have those documents circulated among the Senators.

We also have documents that are mentioned in the various witness affidavits, but which, unfortunately, were not reproduced when the volumes were being made. By name, we have a staff redeployment memo dated 10th January, 2025, an internal memo of the County Government of Kericho. We have certain printouts of M-PESA statements that are referred to in the affidavit of Erick Koech. We have the letter dated 21st August, 2025 with regard to the report of the Ad Hoc Committee on Kazi Mtaani, which, Mr. Speaker, Sir, you have alluded to. It is referred to in the affidavit of the Mover of the Motion.

We have certain RTGS payment extracts that are referred to in the affidavit of Albert Koech. We have the termination letter of Enoch Koech that is referred to in the affidavit of Eric Koech. We have an invitation for a meeting with the Joint County Assembly Committee on Water and Sanitation, and Environment, Forestry and Natural Resources and minutes.

The report of that committee is before this House, but only the invitation letter that was omitted in the course of the photocopying. Then we have bundles of invitation letters dated 18th July, 2025 to appear before the Ad Hoc Committee of the County Assembly of Kericho on Fictitious Payments. Again, the report of that committee is already before this House, so the only documents that were omitted were the invitation letters, which we seek that you permit to be presented to this House so that we have a complete record.

Mr. Speaker, Sir, then finally, we have certain photographs and an attendant certificate of electronic evidence. The photographs are referred to in the affidavit of Kiprotich Rogony and the certificate of electronic evidence is also in that affidavit, but, unfortunately, in the course of mass production of the documents, they were omitted. Those documents, Mr. Speaker, Sir, we beseech you to allow the Senators to have access to, so that we can have a comprehensive view of the situation.

The other documents are the ones relating to the preliminary objection. I would suspend dealing with those ones as directed by the Speaker. I will deal with them as and when that preliminary objection becomes a relevant issue before this House.

My learned colleague should draw my attention to something, so that we do not waste time. I will ask him to just present it to the Senate right away so that the Senate can make a decision.

Thank you, Mr. Speaker, Sir. For record purposes, my name is Elias Mutuma. I just wanted to confirm that the documents that my learned senior has alluded to have already been supplied to counsel for the Governor through email yesterday and physical copies were delivered this morning.

Thank you.

Counsel for the Governor, do you have any objections to that request?

Mr. Speaker, Sir, and hon. Senators, we very strongly object. We strongly object to the attempt to introduce new evidence at this point. It is true that this morning as we were waiting to walk in here, we were served with the documents referred to by my colleague.

The first point of our objection is that we will not have had an opportunity to have looked at them and to prepare ourselves to respond to them, considering that today is scheduled for hearing.

The second objection is that you already gave a timetable within which the filings were to be done, and we all struggled to file within that time, including ourselves, who are also equally have voluminous documents. So, the mere contention that it was for voluminous is not good enough reason.

The third objection is that they were not part of the documents that were used during the proceedings at the County Assembly. For purposes of that point, I wish to make reference to your Standing Orders, the Standing Orders of the Senate, particularly the Third Schedule Standing Order No.80 (8) : Rules of Procedure when considering the proposed removal in Plenary. Rule No.20 states as follows:

“In presenting its evidence, the Assembly shall not introduce any new evidence that was not part of the allegations against the Governor in the County Assembly as forwarded by the Speaker of the County Assembly to the Speaker of the Senate.”

Mr. Speaker, Sir, it is our contention that this Standing Order clearly prohibits the introduction of this new evidence. It is also our argument that if that evidence had been brought to the Assembly, there is also the possibility that the Assembly could have brought it differently. So, we take objection to the introduction of the new evidence and we insist that the matter proceeds as per the documents that were filed within the timelines that you had given.

Mr. Speaker, Sir, I would like my colleague, Mr. Wanyama, to make supplementary submissions on the issue.

Mr. Speaker, Sir, and Hon. Senators, just an additional remark. If you look at paragraph 16 of the Motion and the entire Motion, there is certainly evidence which the Mover of the Motion wanted to adduce before the County Assembly. At paragraph 16 of the Motion, the Mover specifically said on the Floor that the evidence will be sought after asking the House to issue summons. Throughout the Motion, you will see that then there is no evidence. An allegation has been made and no attaching evidence has been adduced. So, that was the evidence which was submitted before the County Assembly and a decision made on them.

Therefore, in accordance with your Rules - and we strongly object to this - the County Assembly cannot introduce new evidence. Even if it was mentioned in the pleadings before the County Assembly, it cannot introduce that new evidence before this House at this stage for only one reason. It is extremely prejudicial to the Governor.

Secondly, the Governor has not had the opportunity to prepare on this evidence; but more importantly, this evidence requires comment from the Governor. Therefore, the

right to fair hearing will be severely breached if this evidence, which the County Assembly is now doing a patchwork, is introduced at this stage.

Lastly, it will contravene your express, clear and unequivocal rules that no new evidence shall be introduced in the Senate if it is not part of the evidence submitted against the Governor in the County Assembly.

Thank you.

Mr. Speaker, Sir, may I have a brief right of reply?

Counsel, let me just make a ruling on this matter so that we make progress.

Thank you, Mr. Speaker, Sir.

We have heard your position. We have heard the Governor's position.

If I heard the counsel for the County Assembly correctly is that the evidence related to those documents is already in our bundles, the original bundles. These documents were omitted by mistake during the compiling of those bundles. They do not introduce any new evidence as is being submitted by the Counsel for the Governor. Therefore, pursuant to Rule 30 of the Rules of Procedure, I will allow those documents to be admitted.

Counsel for the Governor, you may take the stand and make your opening statements.

Mr. Speaker, Sir, we had indicated that we are raising a preliminary objection, but allow me to make an observation that as much as you have made your ruling based on the premise that they were excluded although they were part of the evidence, they were not part of the evidence. These are new documents that were not part of this case. We can only say that they were referred to or alluded to in the charges, but they were never part of the evidence.

We filed a notice of intention to raise a preliminary objection and the same was part of the filings we did within the timeline you gave us. The nature of our preliminary objection is to contend that there was no voting that took place. Therefore, it implicates the requirement that firstly, the voting must have been at the Assembly and secondly, a two-thirds threshold should have been achieved.

It is our contention that the approach adopted by the Speaker in the County Assembly that the documents filed, including the audit of the logs of the process will show that there was no voting system. I pray that you allow us to raise that preliminary objection to the effect that, indeed, no voting took place and two-thirds was not achieved and, therefore, your jurisdiction has not been triggered as a Senate.

Counsel for the Governor, you have 15 minutes to raise your preliminary objection. Counsel for the County Assembly, you will also have 15 minutes to respond and thereafter, the Senate will make a determination on the matter.

Mr. Speaker, Sir, the issues we raise in our preliminary objection is that we invite your attention to the contents of Annex 4 (a) from the

Assembly, which provides an audit of the logging process and details of how the voting went on. That is contained in the affidavit by an IT expert at pages 79 to 85 and also in the affidavit sworn by the Clerk, pages 93 to 95.

What is your issue, the Senator for Nairobi City? Pause the time for the Governor, please.

Mr. Speaker, Sir, we have been through this process many times and these are experienced lawyers. Part of the thing they should do before they start is to introduce to us, the Senate, their documents. You cannot just refer to documents and we have volumes upon volumes here. I would expect the Counsel for Governor starts by telling us what his documents look like, so that we go together. Other than that, he is speaking to himself, with due respect.

Counsel for the Governor, be guided accordingly.

Mr. Speaker, Sir, my apologies. I am referring to Volume II of the County Assembly’s bundles and I will be juxtaposing that bundle Annex 4 (a) from the County Assembly.

On our preliminary objection, the first point I wish to address is what has been referred to by the IT expert. His affidavit is at pages 79 to 89. At page 81, paragraphs 10, 11 and 12, he indicates that they have been using certain software for purposes of payments, budgeting, meetings and so forth.

He says in October, 2024, an enactment was made of Standing Order No.77 and attendant to the enactment of that section, they developed a system for voting by upgrading what they had already had for purposes of implementing that Standing Order. He then proceeds at paragraphs 23, 30 and 31 to say that the system is accurate, verifiable, secure, user-specific and friendly. That is where our preliminary objection lies.

Mr. Speaker, Sir, if it was tailored to meet the intention of Standing Order No.77, Standing Order No.77 (a) requires that in the event an MCA chooses not to vote, he must be deemed to have abstained. When we look at Volume I of the Governor’s bundle, which is pink in colour, at page 98 to 101, it will be noted that if, indeed, it was tailored to meet the intentions of Standing Order No.77, it should also have complied with the provisions of 77 (8) which says that-

“Any MCA who has not voted should be reflected as having abstained.” You will notice at page 98, the votes reflected in that report say that 33 voted and there was zero abstain. If we can go to Volume II of the Assembly’s bundle, you will find an affidavit by the Clerk of the County Assembly at pages 90 to 93, paragraph 17. The Clerk is specific that there were 47 MCAs in the Assembly on that day. Our case is that 18 MCAs did not vote at all and we have produced those affidavits and I will provide them in a minute.

I will now make my first point. If the system that they say was tailored to meet the intention of Standing Order No.77, then Standing Order No.77 (8) requiring that it should reflect abstention should have reflected that 18 MCAs abstained or in the alternative, if it

were to be the case that 33 voted, but which we contest, then it should have reflected that 14 of them abstained.

Mr. Speaker, Sir, that is our first attack on that pretense that there was any voting that happened. It is our contention that a piece of paper was prepared.

The second argument we are making is that 18 MCAs did not vote and the maximum number of votes that system should have reflected is 29. The affidavits we have produced for purposes of supporting that proposition are at pages 117 to 120 of the Governor’s bundle. There is an MCA called Kiptegan, another one called Kibet at page 121 to 122, there is Amos at pages 125 to 127, then there is Edna and Martin at page 128 to 131, then there is also an MCA whose nickname is “broker” at page 132 to 134. There is Gabriella at page 135 to 137

Mr. Speaker, Sir, I am struggling with the 15 minutes I was given. There are affidavits sworn by all the 18 jointly at page 113 to 116. In the same set of documents, we have shown how they have already reported to the Directorate of Criminal Investigations (DCI) for purposes of investigation of the impersonation of their votes. All the 18 MCAs are our witnesses and we intend to probably call 17 or the 18.

Mr. Speaker, Sir, it is our contention that to the extent to which 18 of them did not vote, the representation that the 33 MCAs voted is inaccurate and should have been only

could enter and vote and that as far as we are concerned is what happened. This is why we are saying that the voting system was not accurate, verifiable and auditable.

Lastly, as I hand over to my learned friend, Mr. Wanyama, is to point out that immediately after the voting, the site was pulled down. We are made to understand that in response to our having filed our objection, an attempt was made to set up th same link yesterday, but between the time of voting on 15th of August, 2025 and yesterday and Monday, the site had been down.

We contend that the voting system does not satisfy the requirements that a voting should have happened and should have achieved two-thirds of the MCAs to warrant your having to entertain and determine this preliminary objection.

We pray that you decline to accept this Motion into the House. Mr. Speaker, Sir, I request for five minutes for my colleague, Mr. Wanyama.

Mr. Speaker, Sir, there is a thorny issue which is creeping from our Motion. The County Assembly of Kericho has 47 MCAs. The document submitted by the County Assembly shows that 33 voted in favour of the Motion. There are 18 MCAs before this House who say they never voted for the Motion.

Outside the legalities, the Senate can determine that question factually by asking all these 18 MCAs whether they voted for the Motion or not. This is because Section 33 (2) of the County Governments Act gives this House the jurisdiction. We submit that there is no proper Motion before the House because of that question. It was not supported by the requisite two-thirds majority as required by law.

Allow me to invite you to look at Volume 4 (a) of the County Assembly’s documents because this is where the explanation comes in. The County Assembly say they used a system which they were deploying for the first time in the voting. How would an MCA access the system? They would need their payroll number and ID number.

Yesterday, I attempted to access the system. I was able to access the system which they had restored after pulling it down and was able to vote using the IPPD number and the ID of MCAs. The IPPD number is available in Volume 4 of the document. The same is in the Governor’s bundle at page 259

From the County Assembly’s documents page one of Vol.4 (a) , you will see the ID numbers of the MCAs. These were the passwords to access the system. The username is contained at page 4 of the County Assembly’s document. You will see the IPPD system which is the unique payroll number of each MCA. This system, fortunately, leaves an audit trail. At page 13 of the County Assembly’s documents, you will see the trail of whatever happened to that system. Anyone could have accessed the system. Before I go to this audit trail, the persons who could have accessed the system were the Clerk, the MCAs and the IT personnel. The system will tell you the whole story.

From page 13 to 15, you will see the audit trails. Allow me to show you this because it is very significant.

Counsel for the Governor, you have two minutes.

This audit trail will show that there are three MCAs who voted twice. Remember this is from the County Assembly’s own document. Can I show you their IPDD and names? Yes!

At page 16 of Vol.4(a), you will see that an MCA IPPD number which is

Counsel for Governor, conclude, please.

Yes, I am concluding, Mr. Speaker, Sir. The Mover of the Motion appears on page 16 of Vol.4 (a) at line six and the credentials at line six is again 202-96039. These are the credentials of a gentleman known as Hon. Kiprotich Rogony, the Mover of the Motion and he voted yes.

On page 17, line seven, the same credentials of the same Mover of the Motion, the MCA. You can see the number. Again, he voted yes. From these reports which the County Assembly has submitted as their evidence, there are 36 yes votes from the log-in trail. However, as part of the demonstration of fraud, they were able to say that only 33 voted yes. The answer is that from their own document, which they have submitted to the Senate, 36 MCAs allegedly voted for this Motion and some were voting twice.

Secondly, from this system audit trail, you can see there were 47 attempts to log in at that time. The major attempt was done by a gentleman known as Peter, of course, not myself. Peter attempted to log into this system seven times using the IPPD number of the MCAs. You cannot see the ID number because the ID number was the password. So, you cannot see it. Instead, you will see the IPPD number. So, you can see a gentleman known as Peter has attempted to log in seven times. The log-in trail will indicate that there were 47 successful log-in attempts.

This is maybe the second last point as I sit down. While this system was running for voting, the technical people accessed this system two times. Allow me to just point out the last one at page 17 down there. On the second last entry on page 17, you will see log user admin. It is the same log user then accessing the system again at the end of it.

At page 15, this is in the middle of voting, on line four, you will see the admin accessing the system. If I have time, I will actually show you that there are persons who were able to access the system because the voting duration was between 14 and 45 seconds. You log in, it shows that you have logged in, then you log-out for between 14 and 45 seconds. However, there are some persons who accessed the system for more than two minutes. They just logged-in and then they were there throughout. We were wondering what they were doing in the system.

Lastly, if you look at page 13, when the voting is now about to come to an end, at entry No.7, you will see an MCA who had voted, but then accessed the system. You can see a log-in attempt. They have accessed the system, then they never left the system. So, the question that we are asking is really pre-emptory as I wind up my submissions on this inquiry. Is this system secure? Is this system, based on this evidence, accurate?

We have an affidavit of an MCA who says that someone else voted for him. If I, as an advocate, can access the system and vote, so what about persons who have knowledge to the system, including the user developers? They say this system was developed by the IT Department internally. Remember, it was being used for the first time by the County Assembly on a very serious matter which has heavy constitutional implications, that is the impeachment of a Governor. So, we are asking, is this system accurate? Is it verifiable?

In our submissions - and we conclude this by saying - because we have laid the basis of fraud, a fraudulent pattern by the persons who are in charge of this system and because the 17 or 18 MCAs are here, this Senate, being a House of record, has an ultimate responsibility to inquire on that question now, as part of the preliminary inquiries, and vote on it. Ask all these MCAs. If you remove 47---

Your time is up, Counsel for the Governor. You are repeating yourself.

Thank you, Mr. Speaker, Sir. I will sit down.

Counsel for the County Assembly, please, proceed. Mr. Elisha Ongoya: Mr. Speaker, Sir, my name is Elisha Ongoya. I beg to reply. For starters, in response to this notice of preliminary objection, the County Assembly has filed grounds of opposition named Volume 7. It is a small volume. If it has gone around, it is just a short while ago. An affidavit named Volume 7 (a) , being the affidavit of Edina Chepkirui Tonui. I begin by begging that these documents be deemed to be validly on record. They are the documents I alluded to earlier.

Having said that, I begin by saying that if you look at the written notice of preliminary objection, there are two elements of the objection that my learned colleagues for the Governor have either abandoned or not alluded to, specifically alleging violation of a court order and reintroduction of the Motion, because they have not argued it---

Counsel for the County Assembly, respond to the preliminary objection, not the proposed preliminary objection.

Thank you, Mr. Speaker, Sir. I am comfortable with that. Having said that, allow me then to start with the issue that my learned counsel, Mr. Wanyama, raised here by saying he personally logged into this system and voted.

That qualifies him to be a witness who needs then to demonstrate to this House how he logged into this system and how he voted and, therefore, be a proper subject of cross-examination. Anything short of that, is nothing more than mere sensationalism and I beseech you to treat it as such.

The second issue is on the allegation of the logs that you have just been taken through. It is amazing how sensationalism can arise. If you go to page 13 of Volume 4 (a) of the County Assembly documents, the audit logs run from page 13 all the way to page

You have two minutes.

Thank you so much, Mr. Speaker, Sir. Mr. Speaker, Sir, what are we saying? In a nutshell, we are saying that there is a witness affidavit supported by documents running from page one of Volume 4A--- My apologies. It runs from page four of Volume 4A to page 44 of Volume 4A, giving you an audit trail of the voting process. Nothing can be a clearer explanation of a verifiable and accountable system of voting than a system that generates this kind of audit trails. You cannot fault a system that can generate this volume of audit trails and say it is faulty.

Secondly, you have been told that these MCAs are not technologically advanced and could not vote. Pages one to three of that Volume 4A is evidence of Kericho County Assembly buying for these MCAs laptops to technologically enable them. That was way back in September, 2024. Therefore, the Assembly has done its part.

What is the correct approach to this objection, Mr. Speaker, Sir? I suggest that the matters raised in this objection be subsumed in the trial. These matters should be tested through the trial and determined as part and parcel of the questions of fact and law that this Senate shall deal with at the voting stage of this Motion.

Mr. Speaker, Sir, I respectfully rest the County Assembly’s case.

Hon. Senators, pursuant to Standing Order No.34 (2A) , I will allow not more than 15 minutes from 1.00 p.m. to enable the Counsel for the Governor to respond to what has just been submitted by the team from the County Assembly.

You may proceed. You have no more than 15 minutes because the House must rise at exactly 1:15 p.m. You do not need to take the entire 15 minutes.

Mr. Speaker, Sir, the first point we wish to observe is that in response to our preliminary objection, one of the issues we raised is that the entry credentials being the use of the Identification Card number as a password and use of payroll number as username has not been contested and the emphasis in it is that those two particulars are publicly available.

Anybody who works with the county can easily access the ID number and the payroll number. Therefore, it should have been possible and it happened that other people intercepted the system. This buttresses the arguments made by my friend, Mr. Wanyama, when he pointed out somebody called Peter and others who logged in, including the admin, who in the audit report, is indicated as having entered, whilst it is the clerk who is said to be the admin of the system.

The second argument - I know my friend from the County Assembly has tried to belittle the point we are making about the issue of the button and pressing. If it were intended that you could use electronic means and not necessarily a device that is secure, then even the Senate would have otherwise had to use a different system.

First of all, you would recall that the enactment of Standing Order No.77 was made in October, 2024. It is hardly a year ago, and so if the Kericho County intended to be very electronically advanced, then they should have in place of using the word button, said, we will use a link to vote.

If it was intended that they should not necessarily press, but click to vote, then they should have used the word in that Standing Order No.77 (3) to say that “we will vote by clicking, not pressing’. I insist that the intention of Standing Order No.77 (3) was to ensure that there is accountable, responsible and verifiable voting.

My learned friend, in response to the arguments we have made in respect to Standing Order No.7, has invited your attention to Standing Order No.80 and he puts her on the prerogative that the Speaker has in allowing the use of electronic voting. In reaction to his invitation to you to make reference to Standing Order No.80, we would like to invite you to the Standing Order that is immediately before the one he has referred, which is Standing Order No.79, which says that-

“If MCAs insist that they want to vote by roll call, then the Speaker has no choice, provided there is somebody who has objected and is supported by up to five people”.

In this case, we have invited your attention to the fact that there were 18 people who are opposed to this style of voting and wanted a roll call voting. For that reason, it is

our argument that the only reason why the Speaker defied the provisions of Standing Order No.79 is that there was an intention to fraudulently misrepresent the votes that were cast by the MCAs.

Lastly, as I hand over to my learned friend, Mr. Wanyama, it is said that this system was secure and that point is buttressed by the affidavit by the IT expert that my learned friend, Mr. Ongoya, has repeatedly made reference to. One of the things that comes up for your consideration in our preliminary objection is this; can we determine for a fact that the four MCAs who say they did not vote, indeed voted?

Mr. Speaker, Sir, and Hon. Senators, it is my submission that the only way we can verify that is to determine whether the link was sent to that respective MCA and that MCA voted using the number that the link was sent to. You will see from the audit logs that it does not indicate anywhere the numbers to which the link was sent nor the IP address of the device that it was sent. Therefore, it goes into the question of the scheme to manipulate these votes.

The inference of that and the only way that the county could possibly say they have an absolute answer to the question of whether or not the votes were manipulated is if they could demonstrate that, indeed, the link was sent to an individual and the IP address of that phone gadget was the one that cast those votes. To the extent that the audit report brought to you avoids by design to give you that information creates a doubt in your mind.

Mr. Speaker, Sir and Hon. Senators, in closing part of my submission, as I hand over to my learned friend, this is our argument: that indeed there was no voting and, therefore, the threshold of two-thirds was not achieved. It is our argument that even if, as my learned friend says, there is a possibility that this system was okay, if there is doubt in your minds that, indeed, this system might not have been foolproof, that is enough reason for you to decline entertaining and determining this Motion.

For all those reasons, we pray that you reject this Motion on the basis that you are not satisfied that there was a Motion that was properly considered, that it was properly voted for and the purport that there were 33 MCAs supporting the Motion has been achieved.

That is all, Mr. Speaker, Sir.

Mr. Speaker, Sir, I will stick to the time. In quick rebuttal, I would like to invite the Hon. Senators to look at Volume No.1 of the Governor's response at page 113. My colleague, Mr. Ongoya, talked about one MCA. Ultimately, for the Senate to determine that the Motion is properly before it, it must be satisfied on the threshold. From the 47 MCAs in the County Assembly, at least, the threshold requires that 32 of them vote in favour of the Impeachment Motion.

Now, at page 113, it is true what Mr. Ongoya has said, that one MCA has sworn an affidavit. Principally, they jumped ship. They swore an affidavit saying that they did not mean what they said. However, there are 17 other MCAs who have evidence in support of the preliminary objection at page 113. Ultimately, this is a process that follows the law.

The Senate is a House of record; a House that follows the Constitution, the law and the Standing Orders and looks and listens to the evidence. What is the evidence that I

am showing you here? At page 115 is the evidence of 17 MCAs who have said they never supported the Motion.

What does it mean? Do we have contrary evidence to rebut the cogent allegations by these 17 MCAs? If you do a quick calculation, minus the 17 from 47, how many numbers do we have? We have 30. Does 30 meet the threshold in Section 33(2) of the County Governments Act, 2012? The answer is definitely not. Do we need to wait for this question to be subjected to trial the way Mr. Ongoya has invited? The answer is no.

The evidence is before the Senate to determine the issue. What about the logs? We are relying on the logs given to us by the County Assembly. They are the ones with access to the system. They printed it out and submitted to the Senate. We are simply relying on it, and we are pointing out, we have pointed out more than 10 mistakes on the logs. Why can they not just do impeachment on the right thing? Why are they hiding in technology trying to manipulate the votes for purposes of achieving an objective, which the Constitution requires a very high threshold?

Mr. Speaker, Sir, just to finish, we have also audio evidence, KB1, which we request that when you retire, you can have opportunity to look at. That is KB1. It just fortifies you. It fortifies this fundamental point that we have a problem on this matter that is before the Senate at the threshold question.

Proceed. You have two minutes to do that. The Senate will rise at exactly 1.15 p.m.

Yes, we are requesting that KB1 be played.

Mr. Speaker, Sir, subject to your guidance, I am just wondering whether with introduction of new evidence in this matter, I will be able to respond to it. This is because that is now new evidence.

It is part of the bundle. It is part of the evidence that is already on record.

Mr. Speaker, Sir, this is because we cannot comment on it once they have played it, but we could have commented on it if they had played it earlier, then we can comment in our response.

Just proceed and play the video. Mr. Peter Wanyama: Mr. Speaker, Sir, we request for the KB1 to be played by the ICT staff.

Mr. Speaker, Sir, it seems the screens are off. There was a transcription.

Time is up.

Yes, Mr. Speaker, Sir, thank you very much.

I am afraid we cannot transact beyond 1.15 p.m.

Thank you very much, Mr. Speaker, Sir.

Just take your seat. Hon. Senators, I will deliver my ruling at exactly 2.30 p.m. today on the matters that have been raised.

Hon. Senators, it is now 1.15 p.m., time to adjourn the Senate. The Senate, therefore, stands adjourned until today, Wednesday, August 27th, 2025, at 2.30 p.m.

The Senate rose at 1.15 p.m.