Wednesday, 8th November, 2023 Morning Sitting

Clerk, do we have quorum?

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

Serjeant-at-Arms, ring the Bell for a further 10 minutes.

All the hon. Members, kindly let us take our seats. I am informed that we now have quorum. We will proceed with today's business on the Order Paper.

Clerk, kindly proceed to call the first Order.

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

Senate Majority Leader, what is your point of order?

Services, Senate.

Mr. Speaker, Sir, sorry to disrupt proceedings, but at the rise of the House yesterday, you gave an important Communication. Something which I strongly feel goes to the heart of the exercise that we are carrying out the last two days; an important exercise that this House is undertaking. You gave an important Communication on conduct unbecoming on the part of certain people I would refer to as State officers.

I, therefore, request that we beg your indulgence. Kindly allow us at least a few minutes to react to that Communication, because there are Senators here who have been mentioned, and of course, people are wondering whether there are other forces that are guiding us as we undergo this business.

Mr. Speaker, Sir, I felt that yesterday might have been the time to speak to it, but given that it was very late at night, going almost to 1.00 a.m. in the morning, I request that you allow us to register our dissatisfaction, particularly those that have been mentioned and all of us, as a House.

Very well, Senate Majority Leader. You will allow the Clerk to read the first Order, and then I will allow three Senators from each side to speak for two minutes each. Thereafter, we will go straight to the Business of the day.

Clerk, please proceed.

I will allow comments on the Communication that I did at the rise of the House last night, and I will take three Senators from each side, each speaking for two minutes. The Senate Majority Leader, kindly take the Floor.

Mr. Speaker, Sir, on behalf of the Senate, I would like to register my disappointment on the increasingly unbecoming conduct of Cabinet Secretary, Hon. Moses Kuria, a man who is continually embarrassing the appointing authority and casting serious doubts on the choice ability of none other than His Excellency the President.

That Tweet was in bad taste. It paints Senators as cheap people who have no cognitive abilities to make interpretation of the matters that are before us and make a sober decision that is in the interest of the Constitution and the people of Kenya.

Mr. Speaker, Sir, this is the 14th impeachment hearing that the Senate is hearing, and I have had the opportunity to vote in almost all of them. I take great exception in the conduct of Hon. Moses Kuria in the Tweet that he sent out and the things that he said about this House and the colleagues that he has listed.

In fact, I now agree with Members of this House, who have brought a censure Motion before to discuss the conduct of this particular Cabinet Secretary, because at every given opportunity he has done nothing other than embarrass the appointing authority.

Services, Senate.

Mr. Speaker, Sir, it is my submission that the sooner Moses Kuria is let off his duty, the better for this administration because every single day, in every action that he undertakes, he continues to embarrass the President and the people. No wonder the people of Kiambu County resoundingly rejected his bid to be their governor. It is because of this kind of habit, the kind of things that he says, how he goes about his duties and his overall conduct as a human being.

Let Hon. Kuria know wherever he is, that Senators cannot be intimidated and that the kind of monkey business he is trying to introduce cannot be allowed to stand because this is a distraction---

Sen. M. Kajwang', please proceed.

Mr. Speaker, Sir, first allow me to congratulate you for your resilience. The Communication being referred to was made at exactly midnight, and that is a sign of the commitment of this House.

You were a bit lenient in your Communication. I do not think that such conduct should just be reprimanded and left at that. I would like to urge you that this particular Cabinet Secretary, who uses social media to disparage the House, to refer to matters before the House and to speak of the House in a manner that is extremely demeaning, should be summoned to appear before the House to substantiate those claims that he has made.

Those kind of utterances have got the effect of belittling this House and taking away any credibility this House would have in future impeachments. We have processed many impeachments in this House. If the conduct of CS Moses Kuria was to be considered, his conduct falls within the threshold of impeachment. If he was a governor and he was brought to this House, he would definitely be impeached. `

I urge Members of the other House - because they are the ones who have the responsibility of censuring and sending home Cabinet Secretaries - to take serious judicial notice of the conduct of this particular Cabinet Secretary.

In addition, this House, through the relevant Committee, can come up with resolutions that can then be used to move the other House to discuss his conduct and have him censured.

I hope that Sen. Cheruiyot, because you have the ear of the President who is the appointing authority, let us not just complain in this House; go and tell the boss that this person is an embarrassment, not just to the Government, but to the Republic of Kenya. He is an embarrassment to the entire East Africa. The deals he has done has made Kenya look like a pariah when it comes to issues of supply chain of oil and edible oil. This man must go. We must pronounce ourselves.

Sen. Kathuri, proceed.

Thank you, Mr. Speaker, Sir, for this opportunity to give my comment on this illicit behaviour of the Cabinet Secretary for Public Service, Performance and Delivery Management.

Hon. Speaker, the process going on in this House is very important for the people of Meru County, whom I represent in this House. When I see a rogue Cabinet Secretary

Services, Senate. getting out there to make some very funny comments on social media, it is very embarrassing.

Whatever he is doing is not for the best interests of the people of Meru County. I warn him that he should keep off Meru County affairs. Let him concentrate with the work he has been given by the President. Otherwise, I will request the Senate Majority Leader in the other House to start processing an impeachment Motion for this Cabinet Secretary on this matter.

Mr. Speaker, Sir, as Sen. M. Kajwang’ has put it, after this process is done, I would request that Hon. Moses Kuria is called to this House so that we can discipline him.

Otherwise, he is an embarrassment to the people who voted for the Kenya Kwanza Government and he should be relieved of his duties immediately. The President should take notice of the comments we are giving as this House. Henceforth, let Hon. Moses Kuria give us peace as a Meru community. We do not want to support. We know what we want and what best we can do.

Sen. Sifuna, proceed.

Mr. Speaker, Sir, I am happy that we have come full circle because this is something that I have said on many stages that, in fact, Moses Kuria is an incorrigible national shame.

How much embarrassment does the President have capacity to endure? I can assure you that if nothing is done about Moses Kuria, there is more embarrassment coming. That one I can guarantee you.

What is most hurtful is that even after your Communication, the Cabinet Secretary, who ordinarily should be asleep thinking about how he is going to make the lives of Kenyans better, had the audacity to fire off another Tweet on the material that was presented before this House.

Mr. Speaker, Sir, honestly speaking, action must be taken. I am made aware by the Members of this House who represent us in the Parliamentary Service Commission (PSC) that Moses Kuria ran away with money belonging to Parliament. He should be brought to answer questions about those things and be removed from his position.

For me, there is nothing that brings me greater joy than being proven right about the things that I have said about this administration. I just want the Senate Majority Leader, to please---

As you have said yourself, it casts very serious doubt on the capacity of the appointing authority. How much embarrassment can the President take? It is just one man!

Services, Senate.

As I said, there is a famous poem by Martin Niemöller--- First, he came for the media and when I brought a Motion of censure for the media, some of you were saying, Sen. Sifuna is in the habit of attacking this Government. Now, he has come for the Senate. Do something about this national shame because it will continue unabated. That is who Hon. Moses Kuria is.

I thank you.

Sen. Wamatinga.

Thank you, Mr. Speaker, Sir. I rise to put weight on this important matter. It is time that as a country we should stand up with one voice and be counted, and tell the President that some of these rogue Cabinet Secretaries he has appointed to Government should not hold him hostage.

At this time when Kenyans are suffering from the high cost of living, the least that we need are these Cabinet Secretaries who cannot even pronounce them to the policy direction, instead take it to the Tweet and the media to abuse and belittle this House.

I join ranks with my colleagues. It is high time we tell the President he that must put the house in order. Some of these Cabinet Secretaries are a big shame to the nation. The only thing that they can do when we complain of high cost of living, they tell us to go and dig our wells to produce our oil. It is unacceptable.

I would want to put it in unmistakable terms that Central Region has no shortage of intelligent people who are capable of running the docket that Moses Kuria is running. He should be shown the door as early as today.

We have the power to tell the President that, indeed, such Cabinet Secretaries like Moses Kuria should be fired today, in the morning, if not yesterday.

It is a great shame to this House and to the nation, that someone in the middle of the night, instead of addressing the pertinent issues that are confronting Kenyans, he would take with a cup of---

Mr. Speaker, Sir, he should be fired.

Sen. Onyonka, proceed.

Thank you, Mr. Speaker, Sir, for giving me this opportunity to contribute on this important matter. I want to generalize my comments because there is an observation I have made. Many of our leaders want to destroy institutions that have the responsibility of making sure that our country runs properly.

Hon. Moses Kuria is somebody I have been in Parliament with for many years, including yourself. To a large extent, we have found him extremely intelligent and somebody who made sense. To some extent, he makes himself look such a foolish man, you wonder whether he even ever stepped into a House of Parliament. Sometimes, Hon. Moses Kuria does not understand that what he says means a lot to Kenyans and, indeed, our words have consequences.

I plead with him and many other leaders to realize that these Houses; the National Assembly and the Senate, are not just talking shops. This is a place where we discuss national policy, influence public opinion and where it is assumed that we will be providing direction on where our country is going.

Services, Senate.

I plead with anybody who knows Hon. Moses Kuria, like I do ,and many others, to talk to him and tell him that he has to up his game. At this rate, all of us are going to become his enemies.

Thank you.

Hon. Senators, we have heard three Senators from each side. This cannot be a House of lamentations. This is a House of action.

Pursuant to the point of order that has been raised by the Senate Majority Leader, I implore upon you, hon. Senators, to use or take full advantage of the Standing Orders, to bring sanity to some of these hearsays. You have the power under the law, more particularly under the Standing Orders, to deal with the kind of behaviour that you are complaining about.

Hon. Senators, if you feel, indeed, that the behaviour of the Cabinet Secretary is unbecoming, then invoke the relevant Standing Orders. If you listened to Sen. M. Kajwang’ carefully, you may not be able to have the latitude to make a final resolution to send the hon. Cabinet Secretary home. However, your recommendation to the other House will have a lot of weight. So kindly take full advantage of our Standing Orders and stamp your authority.

Next Order.

Hon. Senators and the parties to this matter, we concluded the case of the County Assembly yesterday. Today, we are going to begin hearing the case of the Governor. We have four hours within which to prosecute and hear the defence by the Governor. The four hours is minus the time given to Senators for questions and clarifications.

The Governor and his team, you will have a solid four hours to put forth your defence. If you are ready, you may proceed.

Services, Senate.

(The Witness for Meru County Governor (Hon. Nicholas Kinyua Josphat) was ushered into the Chamber)

You have two booklets. One big and one, small. Mr. Elias Mutuma: It is the smaller one.

All right, so just refer to those two as small and big for ease of reference.

Mr. Elias Mutuma: Thank you, Mr. Speaker, Sir.

Kindly swear the witness. Swear the witness, please.

took the Oath) Mr. Elias Mutuma: Thank you, Mr. Speaker, Sir. Mr. witness, kindly introduce yourself for record purposes.

Thank you, Mr. Speaker, Sir. I am Nicholas Kinyua Josphat. Otherwise referred to as Kinyua Muna, an elected Member of the County Assembly representing Nyaki East.

Mr. Elias Mutuma: The County Assembly of which county?

Meru County, Mr. Speaker Sir. Mr. Elias Mutuma: Thank you. Mr. Nicholas Kinyua. Have you read the impeachment Motion that is before the Senate?

Mr. Speaker, Sir, yes, I have. Mr. Elias Mutuma: Have you also had a chance to look at the Governor's response that has been filed?

I have also gone through it. Mr. Elias Mutuma: Have you filed an affidavit in support of the response by the Governor?

Mr. Speaker, Sir, yes, I have. Mr. Elias Mutuma: Is it the affidavit contained in that response, appearing on page 86 to page 89?

Yes, Mr. Speaker, Sir. It is. Mr. Elias Mutuma: Do you wish to rely completely on the averments in that affidavit?

Mr. Speaker, Sir, I wish to rely on it. Mr. Elias Mutuma: Thank you. I will ask you very few targeted questions for the purposes of this Motion. Being an MCA of Meru, you are privy to the political opinions in Meru County. Am I right?

Very right, Mr. Speaker, Sir. Mr. Elias Mutuma: It has been said that the Governor of Meru has been unable to work with any of the elected leaders, specifically MCAs. Is that your position?

Mr. Speaker, Sir, it is not my position.

Services, Senate.

Mr. Elias Mutuma: Has the Governor been able to work with Members of the County Assembly of Meru?

Exactly, Mr. Speaker, Sir. After the first impeachment, the Governor made peace with the majority, if not all, of the MCAs, and we have had a good working relationship.

Mr. Elias Mutuma: Yesterday, the counsel for the County Assembly said that that marriage lasted for a few weeks after the first impeachment. Is that the position? If it is not the position, how long did that harmonious working relationship last?

Mr. Speaker, Sir, I can confirm that we have been having a good working relationship with the Governor after the first impeachment. It cannot be said that it lasted for a few weeks because it was so until mid-September when cracks and crises were introduced to the MCAs.

Mr. Elias Mutuma: You allude to cracks and---

Cracks, wars, and incitements. Mr. Elias Mutuma: Were these cracks to the MCAs?

Exactly, Mr. Speaker, Sir. Mr. Elias Mutuma: Who introduced these cracks to the MCAs to the best of your assessment and knowledge?

Mr. Speaker, Sir, much of what happened and what has brought us here is incitement to MCAs, mostly by Members of Parliaments (MPs) , that is Members of National Assembly as well as other political leaders in Meru who may not be elected at the moment.

Mr. Elias Mutuma: Thank you. Have you had a chance to look at the impeachment Motion?

Yes. Mr. Elias Mutuma: Do you believe that the Governor is guilty of any of the charges that she is facing?

I will say not guilty. Mr. Elias Mutuma: Why do you say so?

Simply because if you look at the allegations, many of them do not impute any wrong being on the Governor herself.

At the same time, I know the decision of the County Assembly of Meru through 59 Members to impeach the Governor cannot be termed as their own decision or free will. There was incitement and coercion, as will be demonstrated later.

Mr. Elias Mutuma: Thank you. Let us demonstrate that right now. You are saying that the County Assembly of Meru did not exercise their mind fully in the interrogation of these issues, that they were acting on intimidation and other forces. Kindly, explain that to the Senate.

Mr. Speaker, Sir, I am saying that the Members were not exercising their decisions freely. This is because some were coerced by political parties that they serve through their leaders.

For others, it was a kind of a campaign. Some of the MCAs were promised that if the Governor goes and the Deputy Governor takes the seat, there would be the doubling

Services, Senate. of Ward Development Fund from the current Kshs15 million that is given by the Governor to Kshs30 million. That one brought in excitement among the MCAs as well as pushing them to impeach the current Governor.

Mr. Elias Mutuma: Mr. Nicholas Kinyua?

Yes. Mr. Elias Mutuma: Were you at any point approached and given an incentive to support the impeachment Motion? If so, what was the nature of that incentive?

Mr. Speaker, Sir, one of the incentives to impeach the Governor was the promise that once she goes, the Ward Development Fund will be doubled from Kshs15 million to Kshs30 million.

Of course, there were other inducements, like some MCAs being promised that they will be CECM in the Executive once the Governor goes. Some of them were promised to be Chief Officers.

Hon. witness, listen to your counsel and answer his question. The question was very specific; were you approached and given any kind of incentive? If so, what kind of incentive? That was the question from your counsel.

Thank you, Mr. Speaker, Sir. Yes, I was. Mr. Elias Mutuma: Who approached you and what kind of incentive were you given?

Mr. Speaker, Sir, some of the incentives was monetary inducements.

Mr. Elias Mutuma: Who approached you?

Mr. Speaker, Sir, one of the persons who was sent to offer monetary inducements was a friend of mine, known as Mr. Kimathi. He told me that he had been sent. If I accepted to send away the Governor, I could get an amount.

Mr. Elias Mutuma: Let us go to Paragraph Seven of your affidavit appearing at page 87. You make certain allegations there. Kindly substantiate what you mean.

I can confirm that the Deputy Governor called me and several other Members of County Assembly (MCAs) where he sought my support in the impeachment of the Governor and in return, he would double our Ward Development Fund from Kshs15 million to Kshs30 million.

Mr. Elias Mutuma: Is it your evidence before this Senate that the Deputy Governor of Meru County actually called you in person to ask for your support in this impeachment Motion?

Yes, it is. Mr. Elias Mutuma: Is it also your evidence that the Deputy Governor of Meru County issued a specific incentive of increasing the Ward Development Fund from Kshs15 million to Kshs30 million as an exchange for your support in this impeachment motion?

I can confirm the same not only to myself, but also to other MCAs. It was a promise.

Mr. Elias Mutuma: Did you accept the incentive?

Services, Senate.

Personally, I did not accept it. I took it as a mere campaign promise that may not materialize knowing the kind of finance we are getting from the national Government as a county.

Mr. Elias Mutuma: Are you aware if any of your colleagues at the County Assembly accepted the incentive?

Majority of them bought the idea. Within the conversation in our circles, you could hear that they are convinced if the Governor goes and the Deputy Governor assumes office, it will materialize to their benefit.

Mr. Elias Mutuma: You talk about ‘conversation in your circles.’ What ‘circles’ are these?

Normally, we have formal and informal talks as MCAs. We are friends in some of them and that is what I mean by ‘circles.’

Mr. Elias Mutuma: Let us go to the issue of threats because that is about the incentives. Are you aware of any threats that were issued for people who were not in support of the impeachment?

Once many MCAs resist the move to impeach the Governor, they were threatened to be de-whipped from their political parties and to be removed from the House committees. Indeed, we have two who were removed from those committees as a result of their stand not to impeach the Governor.

Mr. Elias Mutuma: Who are these two that were removed?

One is Hon. Fridah Gitobu Naito who is a Nominated Member of United Democratic Alliance (UDA) . The other one is Hon. Ruth Kananu who is a Nominated Member of Devolution Empowerment Party (DEP) .

Mr. Elias Mutuma: Has Hon. Naito sworn an affidavit to support those allegations?

Yes, she has. Mr. Elias Mutuma: Have you seen that affidavit?

Yes. Mr. Elias Mutuma: Is it the affidavit contained in the Governor’s response? The smaller booklet? Are you able to trace it from your booklet on page 90?

Yes. Mr. Elias Mutuma: Does it confirm the she was de whipped for lack of support of the impeachment Motion?

Yes, she has confirmed via her affidavit. Mr. Elias Mutuma: Who was the other Member that you are aware of that was de whipped?

Hon. Ruth Kananu, Nominated Member of DEP.

Mr. Elias Mutuma: Do you have any document to show that happened? You have not attached any document, right?

Right. No document attached.

Services, Senate.

She was de-whipped. Mr. Elias Mutuma: Let us go to my second last question. So, then you did not vote for the impeachment of the Governor?

I abstained. Mr. Elias Mutuma: Were you on the Floor of the House when this Motion was being discussed and voted?

I was not present. Mr. Elias Mutuma: Why were you not present on the Floor of the House?

The moment it was well known that me and some other nine Members, making it a total of 10 would not impeach the Governor or vote for the impeachment Motion. The atmosphere was highly charged outside the precincts of the County Assembly.

There were some goons that were under instructions not to let us in. When one of us attempted to go there, that is Hon. John Muguna, he was seriously assaulted at the gate of the County Assembly of Meru. That instilled fear to the 10 of us not to get into the County Assembly of Meru on that particular day.

Mr. Elias Mutuma: Let us go to the last question. There was a ceremony that took place at Ncheru where MCAs were in attendance and were hosted by Njuri Ncheke. Do you know what transpired in that meeting and what dates those were?

The meeting was first supposed to be a tree planting exercise where the whole County Assembly was invited, majority of the MCAs attended the meeting. However, it turned out to be an all-things ceremony where the MCAs were threatened with dire consequences in case they never accepted the impeach the Governor of Meru County.

Mr. Elias Mutuma: You talk of dire consequences. I believe you are fluent in the Meru dialect. That oath was administered in the Meru dialect?

Yes, it was. Mr. Elias Mutuma: What were the specific threats of dire consequences for those who withdraw support for the impeachment?

The Members were summoned in front of that gathering. One of the Njuri Ncheke elders was heard telling them ‘Úréa úkúmenya agachoka na nyuma, akeja kúnywa muma kana akeja kírí úntú búbú.’ Meaning, if you know as a Member that you retreat from this course, then you should not be part of this. Then an oath was administered.

Majority of the MCAs are not members of Njuri Ncheke. Maybe they would fear the consequences because they do not know much about it. That was one of the elements of coercion in this impeachment process.

Mr. Elias Mutuma: In this moment, I would like you to look at one of the videos, KMV7. Kindly can we play it?

Services, Senate.

Mr. Speaker, Sir, this video is not very clear. The one we supplied was quite audible.

Yes, I have. Mr. Elias Mutuma: Who have you identified from the County Assembly, so far?

There is the Speaker of Meru County Assembly, Hon. Ayub Bundi and some MCAs.

Mr. Elias Mutuma: There is a story one of the gentlemen is giving about a woman. Kindly explain what that story is about in two minutes.

The elder is explaining to the MCAs that a long time ago, the circumciser of men was a woman and she would literally sit on the men. I think that was a language that was targeted at the Governor. They wanted the Members to understand that the Governor is literally sitting on men in Meru County.

Mr. Elias Mutuma: Let us proceed with watching the video.

We are not making progress with that video. Mr. Elias Mutuma: Kindly proceed to tell us what is being said.

After summoning the MCAs to the front, the elder tells them that---

Mr. Elias Mutuma: How many MCAs can you count from the group that is there?

I can approximate over 40. Mr. Elias Mutuma: Is that the Majority?

It is. Mr. Elias Mutuma: Thank you. So, what is the elder saying?

They are being told that if you think you will retreat from this course, impeachment of the Governor, then you should not come for the oathing simply because a curse will accompany you and your family; and you forget about the Meru leadership.

Mr. Elias Mutuma: Thank you. In your assessment, did that amount to instilling fear among MCAs to support the impeachment Motion?

From what I know about Njuri Ncheke and its stature in the Meru Community as well as how the oath itself is respected and feared by

Services, Senate. members of the Meru Community, that amounted to intimidation, coercion and instilling fear in the MCAs.

Mr. Elias Mutuma: Lastly, this event was conducted on the 14th October, 2023. Am I right?

Very right. Mr. Elias Mutuma: By this time, the Mover of the Motion had not introduced the Motion to the House.

The Mover had not introduced the Motion and the Motion was not even known by its content to the MCAs.

Mr. Elias Mutuma: So, it is your testimony that these Members were being asked to support an impeachment Motion that they had not seen.

They were being mobilised so that by the time the Motion came, they would be ready to impeach the Governor.

Mr. Elias Mutuma: The oath was for them to take a stand even before the contents of the Motion were known.

They were being mobilised in advance even before the content of the Motion was explained to them.

Mr. Elias Mutuma: Mr. Speaker, Sir, that is all for this witness. I leave him for cross-examination.

Mr. Eric Muriuki: Mr. Speaker, Sir and hon. Senators, for the record, my name is Eric Muriuki. I will be taking this witness through cross-examination.

Hon. Kinyua, let us start from where your Counsel has left off. You will confirm that from the video that was played, the captions are not part of the recording, but introduced by the Governor, or that it is her translation.

Being conversant with the Meru language, I can confirm---

Mr. Eric Muriuki: That is not what I asked. You will confirm that the captions were not recorded with the video, but introduced later. Yes or no?

No. Mr. Eric Muriuki: So, are you testifying that the video was recorded together with the captions?

Yes. Mr. Eric Muriuki: You will also confirm that there is nowhere in the video where impeachment is mentioned?

Impeachment is being figuratively referred to as---

Mr. Eric Muriuki: Mentioned or not mentioned?

Not expressively. Mr. Eric Muriuki: Thank you. Let us look at paragraph three of your affidavit. Can you read?

It says that- “I am aware that we have been enjoying a very cordial working relationship with the Governor until mid-September this year, when it emerged from the leadership of the

Services, Senate. House that Members of Parliament (MPs) from Meru County and a few other leaders had picked a war with the Governor.”

Mr. Eric Muriuki: So, your testimony before this Senate is that the impeachment and this entire process began mid-September?

Or there about. Mr. Eric Muriuki: Thank you. I will refer you to our volume two, pages 17 to

I am there. Mr. Eric Muriuki: Open any page between pages 17 and 29.

I am there. Mr. Eric Muriuki: Can you read the date of the first transaction on that page?

I can see 1st July, 2022. Mr. Eric Muriuki: You will confirm that is way before mid-September.

Yes, it is. Mr. Eric Muriuki: Thank you. I will also refer you to our volume two. Just before I go there, for all those other transactions that are on that volume, between Pages 17 to 29, all of them or a majority of them are printed way before the mid-September date.

Exactly. Mr. Eric Muriuki: Thank you. I will refer you now to Page 233 of our volume two.

I am there. Mr. Eric Muriuki: What is the date of that document?

The letter is dated Friday, 1st September, 2023. Mr. Eric Muriuki: Is that mid-September or the beginning of September or the end of September?

It is not mid-September, but it is September. Mr. Eric Muriuki: Thank you. When you say mid-September ordinarily you mean from around the 15th of the month going onward. Right?

Exactly. Mr. Eric Muriuki: I will also refer you to a document on page 232 of volume two.

I am there. Mr. Eric Muriuki: What is the date?

It is dated Wednesday, August 30th 2023. Mr. Eric Muriuki: You will confirm that is way before the mid-September you allege is when this entire thing started?

Way before but thereabouts.

I am there. Mr. Eric Muriuki: First of all, what is the date of that document?

It is dated 25th August, 2023. Mr. Eric Muriuki: In the body of the document, the second line---

Services, Senate.

It reads “I hereby write to inquire if there have been any Meru County Cabinet meetings after the last one I attended on 29th May, 2023.”

Mr. Eric Muriuki: You will confirm that 29th May 2023 is way before mid- September?

Exactly. Mr. Eric Muriuki: Not to belabour the point, but the order on page 416 of our volume two---

I am there. Mr. Eric Muriuki: What is the date of that order, Sir? The date can be found on Page. 417; that is the next page.

Yes, it is dated 7th October, 2022. Mr. Eric Muriuki: You will confirm that is a whole year before the date you are alleging is when this thing was started?

Yes. Mr. Eric Muriuki: Let us go to the ruling on pages 417 to 439. Before we go there. Let us go to Page 155 of volume two.

I am there. Mr. Eric Muriuki: Can you see the date that appears on that WhatsApp extract at the top?

The date is May 27th, 2023. Mr. Eric Muriuki: So, Hon. Josphat, you will agree with me that this narrative that this is a recent problem that has come up is completely false?

From the perspective of a Member of a County Assembly (MCA) , it was brought to us in September or thereabout.

Mr. Eric Muriuki: Hon. Josphat, we have looked at several documents dated way before; some of them a whole year before. You will agree with me that this narrative that this is something recent that came up from mid-September is completely false?

What I mean is that a matter that came as an impeachment piece in September 2023 could have been brought way before but MCAs had hitherto had a good working relationship.

Mr. Eric Muriuki: No matter. Let us go to your allegation that this Motion is sponsored or to use your words “Is an incitement from the Members of Parliament.”

Yes. Mr. Eric Muriuki: When you look at the ruling on Pages 417 and 439, the ruling is dated 29th September, 2023.

Yes, I am there. Mr. Eric Muriuki: You will agree with me that is not a document originating from any Member of the National Assembly. You will agree with me that this is a ruling of a court of law in Kenya.

Exactly. But--- Mr. Eric Muriuki: Hon. Josphat, you are not a member of the United Democratic Party (UDA) , are you?

Services, Senate.

Mr. Speaker, Sir, I would plead with the counsel.

Just answer the question. Are you a Member of UDA or not?

I am not. Mr. Eric Muriuki: So, your allegations in paragraph four of your affidavit that a meeting was called and deliberations were made, that is something you are not privy to, because you are not a member?

After the meeting, all the Members addressed the media.

Mr. Eric Muriuki: Were you called to that meeting of the Members of UDA?

Not called, but they read out their deliberations in public.

Mr. Eric Muriuki: You were not in the meeting.

Exactly. Mr. Eric Muriuki: You will also confirm that you are not a Member of the Mbus Party.

I am not. Mr. Eric Muriuki: And you do not ordinarily attend the meetings of the Members of the Mbus Party?

Yes, but, again, they read out their deliberations in the public.

Mr. Eric Muriuki: In Paragraph 11 of your affidavit, you allege that you know the reasons why a party or parties that you are not a member to, chose to discipline their members. That is what you have alleged in paragraph 11.

Exactly. Mr. Eric Muriuki: You will agree with me that since you have confirmed you are not a member of UDA or Mbus; you do not know the deliberations that happened or the reasons why these parties chose to discipline their members?

I have an affidavit from one of the members confirming it was the reason.

Mr. Eric Muriuki: I am asking you, were you there? Were you part of the deliberations?

I was not there. Mr. Eric Muriuki: Thank you. Hon. Josphat, there are your fellow MCAs and I will name two of them: Koome Faith Ananu, and another Member called Kiambi Ngaruni. Those Members do not support this Impeachment Motion.

Yes. Mr. Eric Muriuki: You will agree with me that they were not de-whipped from their committees.

Yes.

Services, Senate.

Mr. Eric Muriuki: Thank you. So, Hon. Josphat, it must follow therefore that the de-whipping you talk about in Paragraph 11 had nothing to do with supporting or not supporting the Motion?

I will leave that to the discretion of the Senators.

Mr. Eric Muriuki: You will agree with me that MPs have no supervisory role over MCAs.

Agreed. Mr. Eric Muriuki: You will agree with me that an MP cannot force an MCA to vote one way or another way on a matter before the Assembly?

But can influence. Mr. Eric Muriuki: Hon. Josephat, ultimately, every MCA is free to make their own choice in the Assembly. Right?

True. Mr. Eric Muriuki: Thank you. Have you identified the specific MPs that you say influenced or forced you or your fellow Members?

Yes, I have. Mr. Eric Muriuki: Which paragraph of your affidavit?

Not in the affidavit but one of them was here yesterday as a witness.

Mr. Eric Muriuki: Which paragraph of your affidavit have you identified those Members?

None. Mr. Eric Muriuki: Which paragraph of your Affidavit have you identified those Members?

None. Mr. Eric Muriuki: Thank you. On paragraph eight of your Affidavit, are you there?

Yes, I am. Mr. Eric Muriuki: You say, you received calls from other leaders within Meru to support the impeachment Motion in order to restore dignity and respect of Meru as a county, right?

Exactly. Mr. Eric Muriuki: Have you adduced any evidence to show that you indeed received these calls?

Not contained in these documents, but factual. Mr. Eric Muriuki: Have you disclosed the make of the said calls in your Affidavit?

Not in the Affidavit.

Not attached.

Services, Senate.

Mr. Eric Muriuki: Thank you. You have talked about an incentive of Kshs15 million being increased to Kshs30 million.

Yes. Mr. Eric Muriuki: Have you provided any evidence, that any Member was offered, let alone accepted this incentive?

I have not provided. Mr. Eric Muriuki: Thank you. Let us go to your allegation on a WhatsApp group being created.

Yes. Mr. Eric Muriuki: What is the very last sentence on paragraph nine of your Affidavit?

Yes. I am there. Mr. Eric Muriuki: Can you read the very last sentence of paragraph nine?

A WhatsApp group to organize and discuss the impeachment was formed in which we were left out.

Mr. Eric Muriuki: You were left out?

Yes. Mr. Eric Muriuki: You are not members of that WhatsApp group?

Exactly. Mr. Eric Muriuki: How can you come to this House and say that it was established to discuss impeachment if you are not privy to whatever discussions that were happening there?

We have friends who are members of the group, Members of the County Assembly (MCAs) , who can tell you what is going on as friends.

Mr. Eric Muriuki: Have those friends produced any screenshots or any evidence?

No. Mr. Eric Muriuki: Thank you. On the paragraph 10 of your Affidavit, you talk about several meetings. Have you provided the dates, venues or minutes of those meetings?

Not provided. Mr. Eric Muriuki: Thank you. Let us go to paragraph 12 of your Affidavits.

I am there. Mr. Eric Muriuki: You will confirm that you are not present at the Assembly when this impeachment Motion was being discussed.

Yes. Mr. Eric Muriuki: You also proceed to allege that you sent someone to test waters or something?

Yes. Mr. Eric Muriuki: Have you called that person here to testify to that effect?

He has not been called. Mr. Eric Muriuki: Thank you. Would that person have been the person to be called to confirm these allegations?

Services, Senate.

Hon. Nicholas Kinyua Josphat: We have the Occurrence Book (OB), through which he reported the matter.

Mr. Eric Muriuki: Has it been produced in your Affidavits, Sir?

No. Mr. Eric Muriuki: I find this paragraph 12 of your Affidavits very interesting.

Yes. Mr. Eric Muriuki: How many Members of the Assembly are there in the Meru County Assembly?

69. Mr. Eric Muriuki: How many Members were present during the discussion of the Motion?

59. Mr. Eric Muriuki: In paragraph 12, the very last sentence of paragraph 12, can you read it for the Senate?

We ended up staying away, the 10 Members, after the others had curved into intimidation and crossed over.

Mr. Eric Muriuki: It is your testimony that 10 Members stayed away. Is that correct?

Yes. Mr. Eric Muriuki: And 59 Members were in the House?

Yes. Mr. Eric Muriuki: This allegation that there was someone who sent them, got beaten and what not and other stories, is just a fabrication.

It is not a story. Mr. Eric Muriuki: Mr. Kinyua, mathematics tells me that 59 plus 10 makes 69.

Exactly. Mr. Eric Muriuki: If 10 stayed away and 59 were in the House, where is the extra 70th Member coming from that is being sent to test the waters?

Mathematics also informs me that one out of the ten was beaten and he did not get in. That makes them 10. 59 plus 10 is 69.

Mr. Eric Muriuki: Mr. Kinyua, confirm that the functions of an MCA are legislation and oversight.

They are. Mr. Eric Muriuki: Confirm that impeachment is one of the oversight measures that the House can take.

It is. Mr. Eric Muriuki: Confirm that there is no Member of the National Assembly who has a vote at the County Assembly.

Confirmed. Mr. Eric Muriuki: My second last question to you, Mr. Kinyua. I want you to look at Page three of our volume four, are you there?

Yes, I am. Mr. Eric Muriuki: Confirm that your name appears on that page.

Services, Senate.

It does. Mr. Eric Muriuki: What number is your name?

Number 59. Mr. Eric Muriuki: And your signature?

It is. Mr. Eric Muriuki: And your identification number (ID) ?

Yes, I am.

Specifically, Standing Order No.65 at pages 264 and 265 of our Volume 4?

I am there. Mr. Eric Muriuki: That is where Standing Order No. 65 starts.

Yes. Mr. Eric Muriuki: I want us to go to Page 265.

I am there. Mr. Eric Muriuki: I want you to read for me Standing Order No.65 (4) .

Standing Order No, 65 (4) , states that – “When the order for demotion is read, the Speaker shall refuse to allow the Member to move the motion, unless the Speaker is satisfied that the Member is supported by at least a third of all the Members of the Assembly to move the motion, provided that within the seven days’ notice, the Clerk shall cause to be prepared and deposited in his office, a list of all Members of the Assembly, with an open space against each name for purposes of spreading signatures, which list shall be entitled signatures in support of a Motion for the removal of Meru County Governor by impeachment.” Mr. Eric Muriuki: You confirm that it is pursuant to Order 65 (4) that it was added to and that is where you have said you signed.

Yes, Mr. Speaker, Sir. Mr. Eric Muriuki: From the reading of Order 65 (4) , it is not possible for a Member to be coerced or forced to sign?

It is possible. Mr. Eric Muriuki: Were you coerced?

Yes, I was. Mr. Eric Muriuki: Have you produced any evidence that you were?

In the affidavit, it is mentioned. Mr. Eric Muriuki: Which paragraph?

Paragraphs six and eight. Mr. Eric Muriuki: You say that you received calls instructing you. Where does it say in this affidavit that you were forced to sign?

Do you know the contents of the calls? Mr. Eric Muriuki: Where does it say that you were forced?

In the calls.

Services, Senate.

Mr. Eric Muriuki: Can you read Standing Order No.65(5)?

I will read- “Any signature appended to the list as provided under paragraph four shall not be withdrawn.”

Mr. Eric Muriuki: Are you aware that in law, you cannot run away from a document you have signed?

Yes. Mr. Eric Muriuki: Are you aware that a signature appended under Standing Order No.65 cannot be withdrawn just like you have read?

Yes. Mr. Eric Muriuki: I put it to you that you signed in support of the impeachment Motion, a signature which is irrevocable no less and then when you were taken to Maasai Mara with the other nine Members, you decided to change your mind.

I am hearing the Maasai Mara story from you. Mr. Eric Muriuki: I will yield some of my time to my colleague, Mr. Boniface Mawira. I am done with my cross-examination.

Mr. Boniface Mawira: Mr. Speaker, Sir and hon. Senators. My name is Mawira. I have not more than three questions for the witness.

From the video that was played, you said that the captions on that video are part of it. Are the speakers in that video speaking in English or Kimeru language?

Kimeru Language, Mr. Speaker, Sir. Mr. Boniface Mawira: How then can English captions be part of the video?

Any language can be translated. Mr. Boniface Mawira: So, it is a translation and is not part of the video? Previously, you said it is part of the video and now you are saying it is a translation. Is it a translation or part of the video?

Let me make it clear. For the Senate to understand the language, it had to be translated. I do not see anything wrong with that.

Mr. Boniface Mawira: Do the cameras capture captions? If you take a recording of the proceedings herein, will the camera include sub-titles?

I am not a professional photographer, so, I do not know.

Mr. Boniface Mawira: You voluntarily went to the Clerk’s office to sign the verification form?

Not voluntarily. Mr. Boniface Mawira: Not voluntarily, but you went to the Clerk’s office. Who coerced you to go to the Clerk’s office to sign?

I answered that in the previous questions. Mr. Boniface Mawira: Were you pushed to the Clerk’s office? Were you carried there or did you walk to the Clerk’s office to sign?

I walked. Mr. Boniface Mawira: You walked voluntarily or you were pushed?

Involuntarily.

Services, Senate.

Mr. Boniface Mawira: Who coerced you then?

I have said there were calls. Mr. Boniface Mawira: You were coerced by a phone call to go and sign?

You can. Mr. Boniface Mawira: You say that you represent the people of Nyaki East? So, your people should believe when you say that you were coerced through a phone call and that independently, you cannot make a decision on your own, on whether to sign or not?

Counsel, you have seen politicians dying in the course of duty. Do they die voluntarily out of politics? No.

Mr. Boniface Mawira: You will confirm that nonetheless, you signed.

Nonetheless, I signed involuntarily.

It cannot. Mr. Boniface Mawira: You talked of inducements to Members and you mentioned a Mr. Kimathi who was sent to you. Is that anywhere in your affidavit?

It is not. Mr. Boniface Mawira: Is this Maasai Mara trip that you went to part with the inducement that was offered to you?

I have heard it from you. Mr. Boniface Mawira: That is all for the cross-examination, Mr. Speaker, Sir.

Thank you, counsel. The counsel for the Governor, do you have any re-examination to do?

Mr. Elias Mutuma: Yes, I do, Mr. Speaker, Sir. I have few questions for this witness in re-exam.

I want you to confirm that you understand the Kimeru Language, being your mother-tongue.

I understand it very well. Mr. Elias Mutuma: Even without those sub-titles and the translations, you are able to tell the Senate what was said?

Exactly, Mr. Speaker, Sir. Mr. Elias Mutuma: What you confirm to have been said are the exact words that were uttered by the people we saw in the video?

What is being said there is completely in the translation.

Mr. Elias Mutuma: Thank you. You have been given an Integrated Financial Management Information Systems (IFMIS) message that appears at page 17. Do you still have it? It is in volume two. You have been told that transaction confirms that the Governor conducted some violations before August.

I want you to look at the specific item that you were referred to on page 17.

I am there. Mr. Elias Mutuma: Read for us the date.

It is dated 1st July, 2022. Mr. Elias Mutuma: Was Governor Kawira the Governor on 1st July, 2022?

Services, Senate.

No. Mr. Elias Mutuma: Is that an issue that can be attributed to her?

No, Mr. Speaker, Sir. Mr. Elias Mutuma: What you are testifying is as to the good working relationship with the Governor. Was that your testimony?

Yes. Mr. Elias Mutuma: How long did that good working relationship last to the best of your assessment?

It must have lasted between February this year up to September this year. That is a period of seven months.

Mr. Elias Mutuma: You are also not a member of Devolution Empowerment Party (MBUS) Party or the United Democratic Alliance (UDA) .

I am not. Mr. Elias Mutuma: How did you come across information that Members of these two parties had been de-whipped?

It was communicated in the County Assembly through the usual sittings.

Mr. Elias Mutuma: Were you present when that communication was done?

I was not, but hon. Fridah Naito informed us that it had been communicated.

Mr. Elias Mutuma: Are the records of the House accessible to you? Once a communication is done, is it information you can access?

Yes, they are and when this nominated member of the UDA was de-whipped, they refused to give her the official document to show that she had been de-whipped. She was removed from committees and replaced as the Vice- Chair of the Water Committee.

Mr. Elias Mutuma: Was that communication done to the County Assembly of Meru?

It was done, but no official document was given to her for fear that it will be used as evidence in this Senate.

Mr. Elias Mutuma: It is also your testimony that you got instructions and coercion on phone compelling you to tender your signature to the impeachment Motion. Did you eventually exercise your freewill by withdrawing from the support by not voting or abstaining from voting for the Motion?

I would have voted not supporting the impeachment on that day, but I and other nine Members could not access the County Assembly of Meru simply because the atmosphere was charged and goons were hired to harass us.

Mr. Elias Mutuma: You have been told about a Maasai Mara trip. Are you aware of any such trip?

I have heard it from the counsel here. Mr. Elias Mutuma: Did you go to Maasai Mara?

Mr. Speaker, Sir, I did not.

Services, Senate.

Mr. Elias Mutuma: Thank you. Mr. Speaker, Sir, that is all for this witness unless hon. Members have a question. I will be glad to call my next witness with your guidance.

Hon. Senators, we have about five minutes to seek clarifications or questions from this witness.

Hon. Thang’wa, proceed.

Thank you, Mr. Speaker, Sir. Hon. Kinyua, I know that at the Meru County Assembly there are three modes of voting; yes, no and abstention just like the Senate and the National Assembly.

You mentioned that you abstained yet you were not able to access the Assembly because one of you was attacked. Does that mean you were able to access Meru County Assembly later before the voting was done or? Please, clarify on that.

Mr. Temporary Speaker, Sir, my initial plan and that of other nine Members making it 10, was to be in the County Assembly to oppose the impeachment Motion. Once we could not get into the Assembly, it meant we were absent. Maybe I have mixed up the terms; being absent and abstention

Proceed, Sen. Wambua.

Thank you, Mr. Temporary Speaker, Sir. I seek three quick clarifications. First, Hon. Josphat Nicholas Kinyua should clarify which political party he was elected on.

Secondly, according to the report of the resolution of the Meru County Assembly on impeachment, 59 Members of County Assembly (MCAs) voted to impeach the Governor and 10 did not vote. We would not know how they would have voted if they voted. So, all Members present voted against the Governor. Is it your testimony in this House that all the 59 MCAs in Meru County who voted to impeach the Governor were coerced or induced to take the vote that they did?

Thirdly, you make very serious allegations in your affidavit on paragraph seven that the Deputy Governor tried to induce you. What is the evidence? You make reference to several other Members. Who are these Members? People have names. You were called by the Deputy Governor with several others. Who are these people you were called with and where is the evidence that he tried to induce you? This is a serious matter we are dealing with.

I thank you.

Mr. Speaker, Sir and Hon. Senators, I am a member of the Party of National Unity (PNU) . Ten MCAs could not access the precincts of the Assembly. If they were there, I believe they would have voted otherwise.

I cannot say that all the 59 MCAs who were in the Assembly that day and voted yes, were coerced. I am drawing my conclusion from the talk that we had before the

Services, Senate. voting day. I know the stance the majority of them had. Given the free will, they would not have impeached the Governor.

Finally, I said the Deputy Governor made calls. You are telling me to name specific MCAs who were called. I can ascertain that he called all of them in an effort to get support in a promise to increase Ward Fund from Kshs15 million to Kshs30 million.

Proceed, Sen. Cherarkey.

Thank you, Mr. Speaker, Sir. Mheshimiwa, just two quick clarifications. You have told this House that you were not able to access the County Assembly. Did you report to any police station or do you have evidence to that effect including the phone calls? If you can table them kindly.

Finally, I see your signature is number 59. The Meru County Assembly Standing Order No. 65 (5) , is specific on what you are signing. You have alluded that a number of people were induced to support this impeachment Motion. Is there possibility that you have also been induced to testify against the County Assembly?

I thank you.

Thank you, Mr. Temporary Speaker, Sir and hon. Senators. I have an OB belonging to one Hon. John Muguna Thuranira, MCA for Mbeu Ward, who was assaulted on his way to the Meru County Assembly. If allowed, I can give it to the Senate though it does not form part of my affidavit.

Secondly, when I talk about being induced to sign, I know exactly what I mean. Everybody who signed was induced to do so either through promises that the Ward Fund will be increased or by being given other sweet promises.

Proceed, Sen. Sifuna. Hon. Senators, we only had five minutes for clarification. Sen. Sifuna’s question will probably be the last question we will take.

Thank you, Mr. Temporary Speaker, Sir. My question is to the counsel for the County Assembly, my good classmate. I have had to look up the meaning of coercion in the Merriam-Webster Dictionary. It speaks to the use of express or implied threats of violence or reprisal or other intimidating behavior that puts a person in immediate fear of the consequences in order to compel that person to act against his or her will.

Counsel, is it the case of the Assembly that coercion only means physical coercion, that somebody has to hold your hand to sign? Is that the case that is presented by the Assembly?

Dr. Muthomi Thiankolu: Mr. Temporary Speaker, Sir, coercion under the law is not limited to physical intimidation or threats. It is as broad as the Hon. Senator suggests. Our case as the Assembly is that there is no shred of evidence of coercion. For anyone who makes such a claim, the least they can do is to tell you who coerced them, what the specific threat was, how and why that threat induced them from behaving in a manner that is inconsistent with how they would have behaved.

As we speak on the record, we do not know who or when. There is no evidence. It is just chasing allegations. Alleging is the easier thing to do. I can allege anything.

Services, Senate.

Sen. Cheptumo, you seem to have a burning issue. Kindly be quick.

Thank you, Mr. Temporary Speaker, Sir. My clarification from the witness is on paragraph three of this affidavit. It speaks about it emerging from the leadership of the House and that Members of Parliament from Meru County and a few leaders had picked a war with the Governor.

Paragraph eight states that we also received calls from other leaders in Meru County. Is it your evidence, Hon. Josphat Nicholas Kinyua, that the whole impeachment process is initiated by forces outside the County Assembly, as per paragraph three and eight of your affidavits? You need to clarify this for the House.

Thank you, Mr. Temporary Speaker, Sir. This has been my assertion. If you look at yesterday’s submission, we had a Member of Parliament who was a witness. There can be no other proof that Members of Parliament were involved. One of them was here was a witness. Secondly, there was a video of Hon. Mpuru Aburi, the Member of Parliament of Tigania East in meetings all over the county inciting residents against the Governor. How can we accept that they were in public meetings and not calling or influencing the Members of the County Assembly (MCAs) ?

Thank you. Governor’s counsel, do you have another witness?

Mr. Elias Mutuma: Thank you, Mr. Speaker, Sir. I have another witness; his name is Mr. Arayaru Adrian.

Serjeant-at-Arms, usher in the

was ushered into the Chamber)

Mr. Speaker, Sir, as the witness is being ushered in, he has sworn an affidavit that appears in our small booklet. It appears on page 96.

Where do you come from?

I am a member of Meru Njuri Ncheke, therefore, I come from Meru County.

Services, Senate.

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Yes.

What position do you hold in the council?

I am the Chairman of three sub-counties; Tigania West, Tigania East, and Tigania Central sub-counties.

Mr. Adrian Arayaru: Yes.

Is that your area?

That is my area.

I will be specific and short with your testimony. I want to refer you to the happenings of 14th October, 2022. Are you aware of anything that took place at Ncheru on 14th October, 2023?

Yes, I am aware.

What happened there?

Njuri Ncheke members were called. They were few because not all of them were called to attend a tree planting ceremony. I was there briefly because I was committed. When we were there things turned out to be different because we were to plant trees, but the event turned into a political rally. Many things happened there which annoyed the Njuri Ncheke. There was an oath given to the leaders of the County Assembly of Meru. This annoyed us because this is a shrine and according to the Njuri Ncheke regulations and rules, in a shrine, you cannot administer any oath.

Yes, there was.

Who administered the oath?

There was a section of leaders. We have Mr. Muragiri who is the Secretary General of Njuri Ncheke in Meru County and there was the Chairman of the region, Mr. Kathera, and many others.

(Technical hitch)

Broadcast team, what has happened to the sound? Mr. Elias Mutuma: Mr. Temporary Speaker, Sir, I seek your directions on this. This video has been tested minutes ago. The sound was perfect.

Services, Senate.

Broadcast team, what seems to be the problem? Is it a video we can view? Counsel, send one of your colleagues upstairs to the broadcast unit to see if they can work on the video.

Mr. Elias Mutuma: Mr. Temporary Speaker, Sir, one of my colleagues has gone up there. Perhaps, we can play KMV17 as we wait for that video to be sorted.

(A video clip was played)

Information and Technology (IT) people, are we going to have a problem with all the videos? Mr. Elias Mutuma: Mr. Temporary Speaker, Sir, I am inclined to register my dissatisfaction with the technical team.

Sorry, Counsel, are you in a position to move to a different point as we wait for IT to handle the matter of the videos?

Mr. Elias Mutuma: Mr. Temporary Speaker, Sir, this witness is only supposed to testify on what transpired on 14th October and the only piece of evidence that we rely on is those two videos. Therefore, I will have no use for this witness if those videos are not effectively played.

(A video clip was played)

(A video clip was played)

Information Technology (IT) or somebody from broadcast, can you send somebody to give us an indication of what the problem is?

Counsel, you may now proceed.

May we then have the video replayed from the beginning. Kindly pause the video. Can you identify the person making the speech?

Yes. He is the Speaker of Meru County Assembly.

Services, Senate.

What has he just said in that video?

He has said that they want a leader who will be like Hon. Linturi, the Cabinet Secretary Agriculture and Livestock Development.

Yes, he is inviting all the MCAs who were present.

Thank you. Let us proceed. (A video clip was played) Thank you, kindly pause. There is a story the elder is giving of a woman. What is he saying about that woman?

Mr. Adrian Arayaru: Yes.

Kindly, let us proceed. (A video clip was played)

Can you pause the video and explain what that elder has told the MCAs?

Mr. Speaker, Sir, it is an oath that you are taking.

What is the Meru word for oath? Is it "Mochiethio"

Yes, Mr. Speaker, Sir.

Is that what he has said?

Yes, Mr. Speaker, Sir.

Kindly, let us proceed.

Services, Senate.

Yes. Mr. Speaker, Sir.

What is he saying that will happen to MCAs if they go against the declaration?

Yes, Mr. Speaker, Sir.

What is that stuff?

Mr. Speaker, Sir, I cannot tell what the stuff is because I did not go near. There was some security there. Those who were allowed to go there were senior people. They were the ones who were near. So, I do not know whether it was honey mixed with something else; I cannot tell.

What does Njuri Ncheke use for that kind of oath taking?

Mr. Speaker, Sir, in any oath taking, the Njuri Ncheke used blood. An animal has to be slaughtered so that they perform an oath.

Mr. Adrian Arayaru: Yes.

What is he told to do or why is he being invited in front?

Mr. Speaker, Sir, they are crowning him to take the position of the governor.

Services, Senate.

Mr. Elias Mutuma: So, they are installing him as the Governor of Meru County to take over leadership?

Yes, Mr. Speaker, Sir.

In that meeting are you able to see other leaders in Meru?

Yes, Mr. Speaker, Sir.

Is that the same function where the MCAs were present?

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: No.

Mr. Adrian Arayaru: No.

Two weeks ago.

That is after or before that meeting?

That is after. However, I held other positions in Njuri Ncheke.

Mr. Adrian Arayaru: No.

Mr. Adrian Arayaru: Yes.

Services, Senate.

Mr. Maranya Domisiano Mari: Please be mindful of time because I am being timed. Will it be true for me to say that you were elected, therefore, for purposes of your statement today so that you come under capacity of Njuri Ncheke Chairman?

Mr. Adrian Arayaru: No. I could have come even as a mere member of Njuri Ncheke.

Mr. Maranya Domisiano Mari: Can any member of Njuri Ncheke communicate on behalf of the entire group?

Mr. Adrian Arayaru: Yes. In the olden days, there were no leaders of Njuri Ncheke; there were Njuri or the wise men who were the leaders. It is just recently when we started having---

Mr. Maranya Domisiano Mari: It is your evidence that nowadays you have to speak through your officials.

Mr. Adrian Arayaru: No.

You said in the past there was no.

There was not and even now there is no. Nobody is senior than the other even though we use the titles. Even the title I am using cannot make me the spokesperson of Njuri Ncheke.

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Yes.

Could you state his name?

Victor Akwalo Mugambi.

Could I be right to say that you are here to protect the impeachment of the Governor and by extension protect the loss of job of your son-in-law?

No, you are not right.

You have produced a clip allegedly played at a Njuri Ncheke forum. Was that a formal Njuri Ncheke forum?

It was not.

You have said you are a veteran member of the Njuri Ncheke. Is that so?

Mr. Adrian Arayaru: Yes.

Services, Senate.

Mr. Adrian Arayaru: It can, if you are misled. That is why we are saying as members of Njuri Ncheke, we are going to cleanse the shrine because it was not done at the right place.

Mr. Maranya Domisiano Mari: Therefore, a Njuri Ncheke oath has to be done with their formalities to be followed before you administer an oath. Is that your evidence?

Yes, it is.

You also said that one of the formalities is to slaughter of an animal. Is that so?

No. I was specific---

My question is simple. Please listen. Is it a prerequisite that for you to administer an oath, you have to play some things, including what you said you cannot say here because there are non-members? You said including slaughtering an animal.

I said the three oathing. That is not the three oathing.

How many oaths does Njuri Ncheke have?

Mr. Adrian Arayaru: Three.

Not all of them.

Is there any that is conducted in presence of non-members?

Mr. Adrian Arayaru: No.

Mr. Adrian Arayaru: No.

It is an oath. The words that were used there---

He is speaking from both sides of his mouth. It is your evidence that anything conducted in presence of non-members is not an oath. That is what you have just said. It is on record.

I did not say that. Maybe you got me wrong.

It is on record. Therefore, you mean that a Njuri Ncheke oath can be conducted in presence of non-members?

Mr. Adrian Arayaru: Yes.

Services, Senate. Can an oath of a Njuri Ncheke be conducted in presence of members not initiated into the group?

I have said no, but it happened that day.

If it happens, it means the same is not an oath.

It is.

Mr. Speaker, Sir, the conduct of the witness needs to be noted for the avoidance of---

Mr. Adrian Arayaru: Yes.

Yes, because that was---

In other words, does an oath involve two parties?

Kithiri oathing involves two parties.

Now, in that particular oath, who were the two parties involved? Would I be right to say that the two parties involved, according to you, were Meru County Assembly and the Meru County Governor? Those are the two parties involved.

No. I am not saying that.

I am asking if the two parties involved in this scenario of impeachment are two. One, who does the impeachment? Confirm if it is Meru County Assembly.

Yes, it is Meru County Assembly.

To impeach who? Confirm it is the County Governor of Meru.

Mr. Adrian Arayaru: Yes.

She was not present.

From the video that you played, I saw the presence of the Deputy Governor. Is the Deputy Governor a member of Njuri Ncheke?

No, he is not.

I also saw a couple of children and ladies in that quorum. Is that true?

Mr. Adrian Arayaru: Yes.

Are they members of Njuri Ncheke?

They are not.

Are they allowed to participate in an oathing ceremony?

Mr. Adrian Arayaru: No.

Services, Senate.

Mr. Maranya Domisiano Mari: There is a translation to that video that is appearing on the screen. Was that translation part of the video?

Which one in particular?

The English translation that you read as indicated on the video. Was it part of the video or it was translated thereafter?

It was part.

In which language is the translation?

English language.

Were the elders speaking in English?

That day?

Yes, that day.

There were those who were speaking in English---

From their voices.

No, they were speaking in Kimeru.

Therefore, you had to get someone to input the translation. Is that so?

I am sure you are “Meruan” and you---

I am asking a question. That was not part of the original video.

It was the correct translation.

Please be mindful of time.

Mr. Adrian Arayaru: Yes.

Was that translation part of the video?

It was because those are the words that were used, only that it is in a different language.

Mr. Adrian Arayaru: Who?

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Maybe.

Counsel, which video are you referring to so that we pick it up and play for you?

Mr. Maranya Domisiano Mari: It is the first video that was played. I am told it is KM7.

Services, Senate.

Please confirm that the name you can see is Mithika Linturi. You can pause.

What did the Speaker say?

That they will be led by Mithika M’Linturi.

What is the name of the kingpin, the leader?

Mithika Linturi.

Confirm that the same is not Mithika M’Linturi. In fact, those are two different names.

I cannot confirm because I know him.

This is an interpreter who was interpreting verbatim.

I cannot confirm that I know him the way I know you.

Confirm that what is written there is Mithika Linturi and not Mithika M’Linturi

It is.

Therefore, that translation does not capture the actual words stated by the Speaker. It is different.

According to you.

Even according to yourself.

According to me, Mithika Linturi is the same as Mithika M’Linturi.

Mr. Adrian Arayaru: Yes.

They have not mentioned---

I will take that.

Do not be quick to take because I should also add what I want to.

Services, Senate.

Mr. Maranya Domisiano Mari: You have answered my question successfully. Now, what was the purpose of that function?

It was announced through---

What was the purpose of that function? Leave alone the announcement.

I am coming to the point.

No, I am mindful of time. We are here on a time constraint.

Hon. Witness, please answer the question. Mr. Adrian Arayaru: Sorry, Mr. Speaker, Sir.

Proceed, Counsel.

Very well and thank you, Mr. Speaker, Sir. What was the purpose of that meeting?

The purpose was to plant trees.

To plant trees and not a formal meeting of Njuri Ncheke. Can you transact a Njuri Ncheke meeting in a tree planting forum?

Mr. Adrian Arayaru: Yes.

How long did the meeting take?

It took long because---

How long did it take?

Very many hours because I---

How many hours? A whole day or two days?

It took around seven hours.

So, you only attended just a third of that meeting.

Yes, but I followed everything because it was live.

That means much of what you are saying or insinuating you were not presently there when it occurred.

What is now much?

You were not there. You left after one and a half hours or two and a half hours and it took over seven hours. You were not there.

Mr. Adrian Arayaru: Yes.

Services, Senate.

Mr. Adrian Arayaru: “Wewe ni tegemeo. We are seeing you becoming the Governor of Meru.”

Mr. Maranya Damisiano Mari: Did he say when you will become the Governor of Meru? Did he say whether it is now or in the future?

He did not.

There is a statement that wewe ni tegemeo which you have translated loosely to mean you are our leader. According to you, is that translation correct or incorrect?

It is correct.

What is a leader in Kiswahili?

Mr. Adrian Arayaru: Kiongozi

It is tegemeo.

Sorry. What is tegemeo in English language?

You can be depended on or being reliable.

Please confirm according to your just ended translation that the word “tegemeo” in Kiswahili does not mean leader in English.

Actually it does not.

Please now confirm that was a wrong interpretation of the translation. Be mindful of time.

Mr. Adrian Arayaru: Yes.

Yes, there is.

In the clip did they refer to it as sour milk or milk?

I have not seen that unless the clip is played again.

Anyway, among my parting shot, when did the conversation of impeachment of the Governor begin?

It began after the function that was---

That function was on the 14th of October.

Then what is your question?

I am asking that you confirm that the function was on the 14th of October.

Services, Senate.

Yes, it was.

Confirm that the conversation of impeachment began way back in August or September.

Mr. Adrian Arayaru: No.

Mr. Adrian Arayaru: No.

Mr. Adrian Arayaru: No.

Mr. Adrian Arayaru: No.

It does not address those questions.

Yes, because my affidavit is different from that.

It does not address the question of---

I think counsel that is for the Senators to decide. Mr. Maranya Damisiano Mari: I am well guided, Mr. Speaker, Sir. You have stated that Njuri Ncheke elders are responsible for shaping the leadership of Meru.

Mr. Adrian Arayaru: Yes.

Not influencing.

They have shaped it.

Mr. Adrian Arayaru: Yes.

Counsel, cross-examine on different areas. There is a notice to the other witness. You actually cross-examined areas that your colleague had covered. So, if an area has been covered, please, do not return there.

Services, Senate.

Mr. Eric Muriuki: Thank you, Mr. Speaker, Sir. Mr. Adrian, you indicated while standing there that when an oath is administered, things are said that you cannot even speak in this Senate Chamber. Is that correct?

Mr. Adrian Arayaru: I did not say that. I said that there are things which are used which I cannot say in this Chamber.

Mr. Eric Muriuki: Exactly. In that video that you have seen, can you point us to any of those things in the video?

c Which ones?

The videos that have been played, can you point us to any of those things that you have referred to?

Mr. Adrian Arayaru: No.

Mr. Adrian Arayaru: Yes.

And the proper Kimeru word for oath is muuma. Right?

Musyetyo and muuma are the same.

Yes, I am.

Did you vote in the last election?

Yes, I voted.

To the best of your knowledge, is a governor installed by the council of elders or is a governor voted in by the voters?

Mr. Adrian Arayaru: Yes.

Where did you say that event took place?

At Chiru.

You will agree with me that, the place where the events took place is the main shrine of the Njuri Ncheke Council of Elders.

Yes, it is.

It is in fact the headquarters.

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Yes.

Services, Senate.

Mr. Eric Muriuki: It was also your testimony that oaths are administered when animals are killed or animals have to be killed for an oath to be administered.

I cited one oath, that is Kithiri in Meru.

You have testified that no elder, even the chairman speaks on behalf of the council, right? No elder speaks on behalf of Njuri Ncheke, that is what you said?

Counsel, I am getting a bit uncomfortable. I wish you could cross-examine on areas that your colleague has not cross examined on. Otherwise, you are starting as if your colleague has not done any work. This is because all those questions that you are asking are exactly what your colleague has asked.

The answers have been provided. Pick on areas that have not been covered by colleague so that we make progress.

Mr. Eric Muriuki: Thank you, Mr. Speaker, Sir. I am well guided. I request that the first video be played, so that we point some inconsistencies between the translations and the words that are spoken.

Kindly, pause the video. Did you hear that speaker ask a question?

Mr. Adrian Arayaru: Yes.

Can you see any questions on those translations?

The question mark is not there, but the statement is there.

Can you see any question there?

That is why I am saying, it is only the question mark which is not there, but the statement is there.

Mr. Adrian Arayaru: Yes.

Is that appearing anywhere on those captions?

I think it appears in the first one if I am not wrong.

Can we proceed with the video, please?

Mr. Adrian Arayaru: Yes.

Services, Senate.

Mr. Eric Muriuki: Does that appear anywhere in the translations? The translation that you have provided.

That is not the translation.

Thank you. That is not the translation.

I am not saying that is not the translation which you asked unless if the video is replayed.

It is.

Thank you.

It is referring to someone.

Mr. Witness, you will agree with me that Article 11 of our Constitution, recognizes culture as the foundation of our nation.

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: No.

Thank you.

You will, therefore, agree with me that trying to paint the words of those speakers as anything other than what they were; a blessing and a cultural folklore being told, it is an attempt to disparage the culture of the Meru people.

No, because I have not done that.

Mr. Speaker, Sir, that is all from me. I discharge the witness.

Thank you. Hon. Senators, we have five minutes to seek any clarification or questions. Mr. Elias Mutuma: Apologies, Mr. Speaker, Sir.

Sorry, it is time for re-examination?

Mr. Elias Mutuma: Yes.

Sorry, counsel. Mr. Elias Mutuma: I will take less than four minutes in re-examination. You have been told that several of those translations are inaccurate.

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Yes.

Services, Senate.

Mr. Elias Mutuma: Thank you, very much. You have also been told that, that could not have been an oath taking ceremony because, all elders were not present and that non-members of Njuri Ncheke were also present in that ceremony. Did you witness an oath being administered?

Mr. Adrian Arayaru: Yes.

Mr. Adrian Arayaru: Yes.

No, they did not have.

That is all for this witness, Mr. Speaker, Sir. Thank you.

Thank you. Hon. Senators, we have five minutes to ask questions or clarifications. Sen. Cherarkey.

Mr. Speaker, Sir, mine is to the witness. The witness has told us that the Meru County Assembly was competent when they vetted his son-in-law who happens to be a chief officer. Is it competent now that it carried out the impeachment proceedings?

Secondly, in that meeting, were the words ‘impeachment of a governor’ used? Thirdly, when was the witness appointed as an official of the Njuri Ncheke? My final question is whether this witness has the authority to speak on behalf of the Njuri Ncheke and whether the Cabinet Secretary in-charge of Environment, Climate Change and Forestry was present in that meeting?

I thank you, Mr. Speaker, Sir.

Proceed to respond to that question. Mr. Adrian Arayaru: Mr. Speaker, Sir, I will start with the first one where I talked about the competence of the county assembly. It vetted my son-in-law and he passed that vetting.

With regard to the impeachment, those are two different things. There rules and regulations on impeachment and vetting are not the same. Therefore, one cannot compare the vetting of my son-in-law to the impeachment of a governor.

On the second question, I was elected, not handpicked. I said this about two weeks ago that I had other positions. I am the organising secretary of Rwathene-Njuri Ncheke House. Therefore, I was a leader even before being given the position of the chairman of three sub-counties.

I request the hon. Senator to come again with the other question.

Was the Cabinet Secretary in-charge of Environment, Climate Change and Forestry present in that tree-planting exercise?

Services, Senate.

Mr. Adrian Arayaru: Yes, Mr. Speaker, Sir. She was there. What surprised us is that an event attended by a senior person like the honourable Cabinet Secretary turning into a political one yet it was a tree-planting exercise.

Hon. Kavindu Muthama.

Thank you, Mr. Speaker, Sir. My question is to the witness. What does it exactly mean when the Njuri Ncheke sits someone on a seat and announces them? Does it mean that they have removed the current Governor of Meru and sat another one on the seat of Meru and what impact does it have?

Mr. Adrian Arayaru: Mr. Speaker, Sir, it means that Njuri Ncheke is powerful in our community and anything that they say is taken seriously. However, they have no mandate whatsoever to do that even though it happened on that day. It is not the stand of Njuri Ncheke.

Even if you do that, you cannot remove the incumbent governor from her seat. You only make people think that that thing will happen.

Hon. Senators, we need to move to the next witness. You can now stand down.

Counsel for the Governor, kindly call your third witness.

was ushered into the Chamber) Mr. Elias Mutuma: Mr. Speaker, Sir, our next witness is Mr. Dickson Munene. The witness shall be led by Ms. Bridah Kimathi.

Proceed to take your oath.

took the Oath) Mr. Duncan Okubasu: Mr. Speaker, Sir, my colleague, Ms. Kimathi will take on the witness for about 10 minutes to address a certain aspect of the claim and then I will continue with the exam in chief. We expect to take around an hour.

Yes, I confirm.

Is this the affidavit on page 46 of the response by the Governor?

Services, Senate.

Yes, it is.

Do you confirm that the signature at page 72 is yours?

I confirm, Mr. Speaker, Sir.

Have you heard the opportunity to read the Motion?

Yes, I have.

Kindly read for us Count No.1(a)?

Count No.1 is misappropriation and misuse of county resources. It is alleged that the Governor has grossly violated those provisions of the law in the following way:

Are you referring to the IFMIS report they have presented?

Yes, it is based on the IFMIS record that appears on Pages 17 to 29 of their documents.

Services, Senate.

Mr. Dickson Munene: It is basically a recurrent expenditure. The office of the Governor does not have a budget for development.

Ms. Bridah Kimathi: You can confirm that there is no allegation against the Governor for failure to account for this amount?

There is no such allegations.

An issue was raised around the entries in the said IFMIS extract supplied by the County Assembly. The issue raised describes the prepayments. Is there any complaint in the Motion that you read about the prepayments?

Proceed.

On 1st July, 2022, there are nine payments whose item description is prepayments. I would like to confirm that those are payments that were made in the previous regime of the former Governor of Meru County, Kiraitu Murungi.

Mr. Speaker, Sir, there is no such charge.

Kindly proceed to Count 1(b). If you could read it for us.

Count 1(b) is the withdrawal of county funds under the guise of payments for various supplies by the Governor’s relatives, yet they are ineligible to tender for or supply any goods or services to the county governments.

What is the charge based on?

The charge is still based on the complaint that was alluded to and appears in the Volume---

Services, Senate.

Is this the complaint on Page one of Volume two?

Yes, Page one to 29 of volume two. It is the complaint on Kshs1 million for Mr. Thuranira Salesio Mutuma.

Yes, I am there. It reads ‘hospital supplies and others.’

Can you confirm that the Mover of the Motion alluded to the fact that the supply of this specific voucher was for hospital supplies?

I am there.

On that page, can you see the voucher number 65735 that is alleged on Page six as hospital supplies?

Yes, I can see it.

Can you confirm that this is the same voucher number?

Yes, it is.

What was the payment for this specific voucher number made for?

Hospitality supplies.

Would you say this is a deliberate attempt to misrepresent facts by the Mover of the Motion?

It was not.

Is the report presented before this House certified?

It is not certified.

Services, Senate.

Ms. Bridah Kimathi: It has been alleged that some vouchers lack one or two signatures. I refer you to the vouchers that were produced on Pages 19 to 342 of our index of exhibits. Are you aware that the governor produced vouchers on Pages 19 to 342?

I am aware.

It has been alleged that these vouchers lack one or two signatures. In your knowledge and understanding, could you explain this?

I do not see any impeachable offence in my opinion.

Thank you, Mr. Munene.

Services, Senate.

Mr. Temporary Speaker, Sir, I yield the witness to

Mr. Speaker, Sir, my name is Okubasu. I will take on to the witness for the remainder of the questions. I start by a claim that was made about employment of traffic marshals. For this, I will refer you to Page 394 of Volume II.

Is it true that the Governor established and recruited traffic marshals?

It is not true.

What is your response?

My response is; the Governor flagged a pilot test for traffic marshals. This explanation is found from Page 394 of the letter of the County Secretary to the County Public Service Board.

Counsel, kindly direct the House on which document you are referring to.

Mr. Duncan Okubasu: We are referring to Volume II of the County Assembly’s documents at Page 394 to be precise.

Very well, proceed. Mr. Dickson Munene: In that letter, the County Secretary confirms that they have pilot-tested the initiative using the cleaners by training them and having them do this work. They found that the initiative was highly successful. So, it is a letter requesting the CPSB to create the positions of the traffic marshals.

Mr. Duncan Okubasu: So, it is your position that those positions for traffic marshals are yet to be established.

Mr. Dickson Munene: Mr. Speaker, Sir, they are yet to be established. They are in the process of being established subject to meeting the requirements that the CPSB had indicated.

Mr. Duncan Okubasu: Okay. We will leave that issue and then go to an issue that is raised on cleaners who have been designated as senior support staff.

I want to lead you to Page 373 of volume two. Do you have any explanation as to the designation of a cleaner as a senior support staff?

Mr. Dickson Munene: Mr. Speaker, Sir, I indicated that as the CECM of Public Service, I do not have any information as to a designation of a cleaner into a senior support staff. I cannot tell the authenticity of the copies of the payslips that have been attached here.

All I have noticed is that the purported senior support staff are being paid the same amount that a cleaner is paid, which is Kshs15,000 per month. That is the basic

Services, Senate. salary for a cleaner. So, I would highly suspect that this is something that has been edited from a cleaner to a senior support staff.

Mr. Duncan Okubasu: Okay, away from that, there is this allegation about Mr. Nephat Kinyua being assigned the position of the Director of External Linkages without a competitive recruitment process. It is an issue that arose here.

Yes. Mr. Speaker, Sir.

What is your position about it?

My position about this is that Mr. Nephat Kinyua, who is an administrator in the Office of the Deputy Governor, was deployed to perform the functions of a Director of External Linkages.

Okay. Has that happened already or not yet?

Mr. Speaker, Sir, it has happened.

It has happened?

Mr. Dickson Munene: Yes.

Mr. Duncan Okubasu: Okay.

Yes, it is correct.

Second is that it did not affect only those three employees.

Yes, it did not only affect those three employees.

How many employees were affected, if you may tell this House?

Mr. Dickson Munene: 17.

Services, Senate.

Mr. Dickson Munene: There is no complaint, but there was a Petition that was filed in court by the same Salesyo Thuranira on alleged illegal appointment and deployment by the County Secretary, while he sues the County Secretary. That matter is still pending in court.

Mr. Duncan Okubasu: Fair enough. I am about to finish. I will ask you questions about the appointment of Monica Kagwiria, Dr. Koome Muthuri, Francis Muigai and Silas Mbaabu. That these people were appointed in an acting capacity for more than six months. Is that a correct allegation or not?

It is not correct.

What is your explanation to that?

Monica Kagwiria was appointed in acting capacity on 17th May, 2023. Six months are yet to lapse. The other two, Dr. Koome Muthrui was appointed on 23rd August, 2023 still in acting capacity. It is also still not six months yet.

It is not a correct position.

What is the correct position?

To my knowledge, I have not seen any letters of appointment signed by the Governor appointing these particular employees under the Office of the Governor. These particular employees are usually appointed by the County Public Service Board.

He had four drivers.

Your testimony is that the Deputy Governor had four divers?

Mr. Dickson Munene: Yes.

Services, Senate.

They were resignation letters.

Is that found anywhere on the record?

Yes. There is a letter of resignation on Page 366 and another on Page 367.

So, they are actually resignation letters. Is that correct?

From the face of it, they are resignation letters.

Has any of those employees taken the County Government to court in respect of those resignation letters?

I am not aware of any person.

Okay. I will finish with just one question on IFMIS. I will go back there. I want you to confirm one thing to this House, on the charge of misappropriation of funds. Please, confirm the date when the Governor assumed office.

On 25th August, 2022.

Now, the IFMIS document that we have been given predates the date when the Governor got into office. Is that correct?

That is correct.

Are there entries that are similar in nature as to when this Governor was not in office and what happened after she got into office?

Yes, there are entries as I have pointed out.

Can you flag out two or three of them? That will be the last question from me.

Mr. Dickson Munene: Yes.

Counsel for the County Assembly, proceed to cross-examine the witness.

Dr. Muthomi Thiankolu: My learned friend, Mr. Dickson Munene, good afternoon.

Mr. Dickson Munene: Good afternoon.

Services, Senate.

Dr. Muthomi Thiankolu: Please, confirm to the Senate your professional background.

Mr. Dickson Munene: I am a lawyer by profession and an Advocate of the High Court.

Practicing with which firm?

I stopped practicing when I joined the County Government.

In which firm were you practicing before you stopped?

OMK Advocates

Who was your partner in that law firm?

There was Isaac Kazungu and

That was our colleague who just examined you a while ago. Right?

Mr. Dickson Munene: Yes.

Mr. Dickson Munene: Yes.

It is the Chief Officer (CO).

His name?

Her name is Naomi.

You will agree with me that would ordinarily be the person testifying to accusations of embezzlement of funds, not you who heads a different department. Would you not agree to that?

It depends.

Who ordinarily, Sir? You are a lawyer; let us make it easy. Who as a matter of law and fact ideally should be responding to the allegations about embezzlement of funds? Is it you or the accounting officer?

The accounting officer.

Good. Does the County Government of Meru have a CECM for Finance?

It does.

What is her name?

CPA Monica Kathono.

You will agree with me, even if we were to take it that there is no accounting officer, that, that would be the next person in line who would be better placed to tell the Senate about the misappropriation of funds. Correct or incorrect?

Mr. Dickson Munene: Correct.

Services, Senate.

Dr. Muthomi Thiankolu: I put it to you that the reason none of these officers have been called as a witness is because they know from their professional background that they cannot defend the allegations before the Senate.

Mr. Dickson Munene: That is not true. The reason is that many of the allegations that have been made here are on employment and we could not bring every employee of the county to answer to these questions.

Dr. Muthomi Thiankolu: We are on the allegations of embezzlement of funds. I put it to you that the reason the Governor has not called either of these two officers to defend the irregularities on this IFMIS is because those officers cannot as professionals in that line defend the content of this IFMIS; the irregularities on it.

That is not true.

You just told the Senate that---

Dr. Muthomi, a little

One hour might be too much. Dr. Muthomi Thiankolu: My challenge is that you take note of all the affidavits filed by the Governor, the bulk of the Governor’s defence is in this witness's affidavit. He speaks to many things. The length of his affidavit clearly confirms it. That is the only reason we beseech you to grant us at least an hour.

Very well. We are going to give you 30 minutes and we take a break for lunch then we resume and work within that time.

Dr. Muthomi Thiankolu: Much obliged, Mr. Temporary Speaker, Sir.

Proceed. Dr. Muthomi Thiankolu: Mr. Dickson Munene, it is your testimony before the Senate that the transactions on the IFMIS report on Page 17 to 29 relate to the period when Governor Kiraitu was the Governor. Right?

Mr. Dickson Munene: That is not true. I have said that it transcends between the two regimes when the former Governor was in place and when the current Governor is.

Dr. Muthomi Thiankolu: It transcends the two regimes.

Mr. Dickson Munene: Yes.

Mr. Dickson Munene: Yes.

I will have to confirm that.

Okay, we will confirm with you. Go to Page 17. What is the date at Page 17 of the first transaction?

Services, Senate.

When did the Governor assume office?

On 25th August, 2022.

You will agree with me after the first 12 transactions, all the other transactions on Page 17 cover the period when the Gov. Hon. Kawira Mwangaza was the one in charge. Right?

Mr. Dickson Munene: Right.

Mr. Dickson Munene: Right.

Mr. Dickson Munene: Yes.

All the way to the end?

Yes, until the end of the financial year.

Good. Therefore, you will agree with me, Sir, that more than 99 per cent of this Integrated Financial Management Information System (IFMIS), relates to a period when Hon. Kawira Mwangaza was the Governor for Meru County. True or untrue? It is there on the document.

Would you agree more than 90 per cent?

Yes, I would.

Good. It is, therefore, not correct or even fair to suggest that it is someone else other than the Gov. Hon. Kawira Mwangaza who should be questioned about the irregularities in this IFMIS?

That was never the suggestion.

Okay, that was not a suggestion. We will deal with it later. Is there anywhere in the impeachment motion we mentioned hospitality?

Mr. Dickson Munene: Yes.

No, various supplies.

Yes, but everywhere was made of the phrase ‘hospital supplies’ vis-à-vis ‘hospitality supplies.’

That is in your annexure.

I am talking about the Motion, Sir.

It is not in the motion.

Good. I would assume, Sir, as the Head of Legal Services in Meru County, you are familiar with the County Governments Act. Is that a fair assumption for me to make?

Yes, it is.

Let us go to volume three of the Meru County Assembly’s bundle. Sir, go to Page 19 of that volume. You will see their Section 30 of the County Governments Act. Right?

Services, Senate.

I am not there yet. Which page did you say?

Page 19 of our volume three.

Mr. Dickson Munene: Yes.

Functions and Responsibilities of a County Governor.

It talks of two things. One is functions, right?

Mr. Dickson Munene: Yes.

Mr. Dickson Munene: Yes.

Mr. Dickson Munene: Yes.

Yes, Mr. Speaker, Sir.

The requirement here is one of diligence in paragraph 2(a).

Mr. Dickson Munene: Yes.

‘Diligently’ is the word.

Let us go to paragraph three. Before we go there, above there is (i). Does it require the Governor to ensure the discharge of any function within the County and within the provision of any services? Does it not mean that the Governor is responsible for ensuring the proper discharge of all the functions of the County Executive? This is Section 30(2)(i).

Services, Senate.

“By a decision notified in the County Gazette, the Governor shall assign to every member of the County Executive Committee responsibility to ensure the discharge of any function within the County and the provision of the latent services to the people.”

Dr. Muthomi Thiankolu: So, the Governor does not just assign responsibilities to the CECMs or any other officer, but they have to ensure the discharge of the relevant function and going to the previous section, diligently. Is it not?

Mr. Dickson Munene: Mr. Speaker, Sir, my understanding is that the Governor shall assign every member a responsibility and this responsibility is to ensure the discharge of any function within the County and the provision of related services to the people.

Fair enough. Read the opening line (3).

It says- “In performing the functions under (2), the Governor shall---”

It says that ‘the Governor shall.’ This Section is speaking to an obligation of the Governor. Correct?

Yes, it is.

As the eminent lawyer you are, this is a mandatory obligation under the canons of interpreting the law? Does the word ‘shall’ connote an obligation in the nature of a mandatory duty?

It is, but I do not think it is mandatory.

Okay, we shall live with that. However, what does it say the Governor shall do as per paragraph (a)?

Yes, and development.

The Governor is the leader when it comes to issues of governance in the county. Is it not?

Mr. Dickson Munene: Yes.

It is, Mr. Temporary Speaker, Sir,

If it is and the statute says that the Governor shall provide leadership, therefore, it is not open to the Governor to throw junior officers under the bus when the statute states it is her responsibility. Correct or incorrect?

Services, Senate.

That is the defence I am interrogating, my learned friend. Is that defence consistent with paragraph (a), which says the Governor shall provide leadership on matters of governance?

Mr. Dickson Munene: I would like to see the paragraph that you have just quoted on the Governors defence.

I will of course show it to you, Sir.

Thank you.

Mr. Temporary Speaker, Sir, just a minute I open my---

Do you mean the paragraph appearing on Page 3?

Yes. Can you read it for us?

‘The impeachment Motion is therefore a means to a selfish end by the Deputy Governor, who is the ultimate beneficiary if the Governor is removed from office. Indeed, the bulk of allegations against Her Excellency the Governor largely constitute matters that this Senate found the Governor not be in wrong doing during the first impeachment by the County Assembly.’

This is correct.

It also talks of the governor bearing responsibility to promote unity and cohesion.

Services, Senate.

Dr. Muthomi Thiankolu: Yes, but you also agree that if by law this is the governor's responsibility, if there are serious questions about governance, cohesion and national unity the governor cannot say that it was not her, that we crucify someone else. True or untrue, Mr. Munene?

This is a collective responsibility because---

Does the Section state that this is a collective responsibility or does it say it is the governor's responsibility?

What does the Act state?

It states- “(3) In performing the functions under subsection (2), the governor shall -

That is correct.

I put it to you that based on all these legal provisions, it is not legally open to the governor to say that ‘it was not me’.

You still have seven minutes to go before we take a break.

Dr. Muthomi Thiankolu: Mr. Temporary Speaker, Sir, I apologise. I read the signal wrongly. Mr. Munene, as a lawyer, to the best of your knowledge, is the Government allowed to pay for goods not supplied and services not rendered? I will refer you to Volume III, Page 51. Have you reached there?

Mr. Dickson Munene: Yes, I have.

Services, Senate.

Dr. Muthomi Thiankolu: Section 45(2) of the Anti-Corruption and Economic Crimes Act. You will agree that is a Chapter Six law. Am I right or wrong? It is law that breathes life into Chapter Six of our Constitution. Correct or incorrect?

Mr. Dickson Munene: Sorry.

Yes, it does.

Good, it does. Now, at Section 45, what does it tells us a public agency should not do at Subsection 2 (ii) and (iii)? Does it say public agencies cannot pay for goods not supplied or supplied in full?

Mr. Dickson Munene: Sorry,

For goods not supplied or not supplied in full.

On its face, does that prohibit prepayment? Either it does or it does not.

The prepayments are for the imprests.

Yes, but we have only adduced a few imprests. Out of the 107 transactions, we have only adduced imprest for less than 10.

Services, Senate.

Dr. Muthomi Thiankolu: Let us go back to the Public Procurement and Asset Disposal Act. If you can read it for the Senate.

Sorry, is it in volume three?

Mr. Speaker, Sir, I do not believe that one was printed. It is Section 146 of the Public Procurement and Asset Disposal Act.

Do you want the witness to read the provisions of that particular section?

Dr. Muthomi Thiankolu: Yes, the witness is a lawyer, there should be no hardship in speaking to these issues. It is a legal issue.

A minute. It is on advance payment.

What does it say?

It says- “No works, goods or services contract shall be paid for before they are executed or delivered and accepted by the accounting officer of a procuring entity or an officer authorized by him or her in writing except where so specified in the tender documents and contract agreement. Such an advance payment shall not be paid before the contract is signed”

We need to stop on that note. It is time to adjourn the House. You will pick it up from there in the afternoon. You will have a balance of 30 minutes when the session resumes in the afternoon to continue with your cross-examination.

Dr. Muthomi Thiankolu: Much obliged, Mr. Temporary Speaker, Sir.

Hon. Senators, it is now 1.15 p.m., time to adjourn the Senate. The Senate, therefore, stands adjourned until today, Wednesday, 8th November, 2023, at 2:30 p.m.

The Senate rose at 1.15 p.m.