Wednesday, 3rd December, 2025 Special Sitting

Clerk, do we have quorum?

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

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

Order, hon. Senators! We now have quorum. Clerk, you may proceed to call the first Order.

Sen. Osotsi and company, kindly take your seats.

Hon. Senators, you will recall that at the sitting of the Senate held on Thursday, 27th November, 2025, I appointed today, Wednesday, 3rd December, 2025 and tomorrow, Thursday, 4th December, 2025 as the days when the Senate will hear the charges for the proposed removal from office, by impeachment, of Hon. Amos Kimwomi Nyaribo, the Governor of Nyamira County.

Vide Gazette Notice No.17613 dated 2nd December, 2025, I notified the general public that pursuant to Standing Order No.80 (1) (b) (ii) of the Senate Standing Orders, the Senate shall investigate the proposed removal from office, by impeachment, of the Governor of Nyamira County in plenary. Consequently, a hearing programme has been prepared and appended to the Order Paper for today, that highlights the various activities to be undertaken in the hearing.

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

Hon. Senators, during the pre-hearing, the parties, if they are present, all members of the public and media will be expected to withdraw from the Chamber and Galleries, and any form of broadcasting from the Chamber shall cease.

Consequently, I now direct the parties, all members of the public and the media to withdraw from the Chamber and the Galleries, and any form of broadcast from the Chamber to cease forthwith. In accordance with the hearing programme for an impeachment hearing in plenary, the open session will commence at 10.00 a.m.

Thank you.

Clerk, kindly call the Order.

Mr. Speaker, Sir, thank you for granting us this opportunity to appear before you today. On behalf of the County Assembly of Nyamira, I wish to introduce the counsels representing the County Assembly of Nyamira.

I now similarly invite counsel for the Governor to introduce the legal team representing the Governor by stating the full names and designation of each person. You may proceed.

Thank you, Mr. Speaker, Sir and good morning to distinguished Senators.

My name is Elias Mutuma. I wish to confirm that pursuant to the notice to appear, the Governor is before the Senate in person. He is also represented by the following counsel-

Senator for Kitui, kindly take your seat. Hon. Senators, ladies and gentlemen, on behalf of the Senate, I welcome the team for the county assembly, the team for the Governor, members of the public and the media to the Senate and to these proceedings.

Finally, I now invite the Clerk to call the next order and, thereafter, to read the charges against Hon. Amos Kimwomi Nyaribo, the Governor of Nyamira County.

I thank you.

Whereas Section 6A(1) and the Third Schedule of the County Governments Act, 2012 specifies the location of Nyamira County Government as Nyamira Urban Area;

Whereas Section 7B(2) of the County Governments Act, 2012 provides that- ‘‘Except for a sitting of a new County Assembly under Subsection (1), a sitting of a County Assembly may be held at any place within the county and may commence at any time as the County Assembly may appoint.’’

Whereas Section 30(2)(a) of the County Governments Act, 2012 requires the Governor to diligently execute the functions and exercise the authority provided in the Constitution and the legislation.

Whereas Section 30(3)(c) of the County Governments Act, 2012 requires the Governor to promote democracy, good governance, unity and cohesion within the county;

WHEREAS Article 232(1) of the Constitution, 2010 sets the Values and Principles of Public Service, requiring efficient use of resources, transparency and fair competition and merit;

WHEREAS Section 4 of the Public Appointments (County Assemblies) Approval Act, 2017 requires that an appointment under the Constitution or any other law for which the approval of a County Assembly is required shall not be made unless the appointment is approved by the relevant County Assembly in accordance with this Act.

Deputy Clerk, just give me a minute.

You may proceed, Clerk. The Deputy Clerk of the Senate

: Hon. Amos Kimwomi Nyaribo, how do you plead to the two grounds; guilty or not guilty? Ground 1?

The Governor of Nyamira County

: Not guilty. The Deputy Clerk of the Senate

: Ground two? The Governor of Nyamira County

: Not guilty.

Now, the plea having been taken, we will move to hear opening statements from both teams, unless there are preliminary matters that the parties would wish to raise. If there are no preliminary matters, we shall move to opening statements starting with the county assembly.

Yes, counsel for the governor.

Thank you, Mr. Speaker, Sir, and hon. distinguished Senators. My name is Elias Mutuma, representing the Governor in this matter.

Mr. Speaker, Sir, you will recall that on 1st December, we did formally raise a Preliminary Objection (PO) dated 29th November, 2025, which is seeking to have the proceedings before the Senate terminated in a summary manner before proceeding for

full trial. I will be arguing this main preliminary objection with your leave and my learned friend, Mr. Ratemo, will also raise two applications at the end of my presentation.

Hon. Senators, the preliminary objection before you is the one dated 29th November, 2025.

Counsel for Governor, you were to indicate that you are going to raise a preliminary objection, so that I give time indication.

Now, if you look at Rule 14 of the Rules of Procedure, in the Third Schedule, we have 30 minutes to conclude matters of a preliminary nature. I will, therefore, give you 20 minutes to argue your preliminary objection. I will give the County Assembly 20 minutes to respond and five minutes to make your rebuttal. Then, the Senate can deal with that.

You may now proceed.

Thank you for that guidance, Mr. Speaker, Sir.

Your time starts running from now.

Thank you, Mr. Speaker, Sir, for the opportunity. Like indicated earlier, we have raised a preliminary objection dated 29th November, 2025, and it is contained in the Governor's documents at Volume I. It is a very thin document.

The objection that we have raised in this preliminary objection is not just about a procedural issue. It boils down to the very core and principles of our Constitution because the Motion that has been presented before you and the resolutions by the County Assembly of Nyamira do not meet the legal threshold. At the end of my presentation, you will have no doubt in your mind that the Motion before you is based on a foundation that is constitutionally rotten, procedurally fraudulent and mathematically impossible.

I will be submitting that there is only one remedy available for this kind of an incompetent Motion; that is, to terminate it before moving for trial. For allowing the procedure to go on to full trial, would be to let annullity in law assume a cloak of legitimacy.

Mr. Speaker, Sir, the core of our objection is that the Motion before you does not meet the two-thirds threshold that has been set by our Constitution and the other enabling provisions of the law. This ground is premised on two main issues.

The first one is that, whereas our Constitution at Article 181 which gives these Senators the power and the mandate to hear and make a determination on matters of impeachment requires that if the impeachment proceedings were to succeed, then it must have been supported by at least two-thirds of all the members of the County Assembly. Therefore, before even interrogating the issues before you, the first call of duty is for you to satisfy yourself that the resolution that has been forwarded by the County Assembly meets that threshold.

Hon. Senators, there are only three legal provisions that guide on matters of impeachment. One is Article 181 of the Constitution which requires that the County Assembly, through the operationalisation of Section 33, must meet that threshold. When you look at Section 33 of the County Governments Act, it provides as follows.

Before I go there, hon. Senators, let me submit as follows: Matters of impeachment must begin from Article 181 which gave Parliament the power to enact a law that provides for the procedure of removing a governor from office. Pursuant to that

mandate, this Parliament enacted Section 33 of the County Governments Act. The provisions of Article 33 are very clear that the threshold must be two-thirds of all the members of the County Assembly.

Mr. Speaker, Sir, now, the County Assembly will appear before you and argue that the threshold had been reduced by vacancies that had resulted from death, resignation or other factors, but the constitutional threshold remains fixed. It cannot be altered. It cannot be amended. Therefore, what is the total number of Members in the County Assembly of Nyamira? At Volume 2A of the Governor's document, you will come across the official determination of the total number of Members of the County Assembly of Nyamira.

Who makes a determination on the total number of Members of a county assembly? It is not the speaker of a county assembly. It is not the leader of majority. It is not even the mover of the motion and it is not any Member of a county assembly. That determination on the total number of the Members of county assembly is predetermined by the very institution that has been mandated with matters election in Kenya, which is the Independent Electoral and Boundaries Commission (IEBC).

At page 42 all the way to page 46 of Volume 2A of the Governor's documents, you will come across a Gazette Notice that was published way back in 2022, confirming the total number of Members of the County Assembly of Nyamira. That is the total number legally declared, legally fixed, that cannot be changed or altered by any Member. That number is 35. It comprises of 20 elected Members of the County Assembly, 11 Members for gender top-up and four representing the marginalised. That is the position. That is the legal position. It has never changed at any given moment.

Mr. Speaker, Sir, we have no doubt in our minds that the County Assembly of Nyamira has a total of 35 members of the County Assembly. That number cannot be reduced by interpretation, by innovation or by improvising of any Member. Hon. Senators, having that in mind, then what is two-thirds of 35?

I may not be good in maths, but we were here before with the Kericho and Isiolo matters. This Senate was very clear; that you cannot have half a person. Therefore, when I do my maths correctly, at least two-thirds of 35 must remain to be 24. The question then that this Senate will have to ask itself is whether 24 Members of the County Assembly resolved to impeach the Governor. Should you find that you do not have 24 people who voted in favour of this Motion, there is only one remedy; to send the County Assembly back to the drawing board for them to meet that threshold.

Hon. Senators, the record before you will demonstrate two things. The first one is that there were 19 Members present on 25th November, 2025 who voted to impeach the Governor. That is on record; the HANSARD speaks for itself. However, strangely, 23 votes were generated from a total of 19 Members who were present in the Chambers. Section 20 of the County Governments Act gives directions on the procedure of voting. It says as follows-

“That any decision of the county assembly shall be made by Members present and voting.”

Section 20 of their own Standing Orders No.67 speaks verbatim and says that any decision of the County Assembly shall be made by members present and voting. Now, if

we only had 19 Members in Chambers - they have given you that list, how could they generate more than 19 votes?

Hon. Senators, it is a joke of the year. I may not be good in mathematics, but I am sure, a total of 19 will never generate 23. On that ground alone, this is a flawed Motion. It cannot be entertained. I know my learned friends will come here and try to persuade you to proceed to full trial and make a determination. The question is: What will you be calling witnesses to confirm or to adduce evidence on? Their own numbers confirm that they had 19 people, but 23 votes were cast.

What is the explanation they are giving? That they were voting by proxy. I went looking through our Constitution, the County Governments Act and their own Standing Orders. There is nothing known as proxy voting. What is this concept of voting by proxy that is being introduced?

Hon. Senators, the mandate of a legislator in a county assembly or in the Senate such as this is delegated by mwananchi. You cannot delegate that mandate further by giving someone else that mandate to vote on your behalf. They will produce letters that incidentally- and this is very important- were never tabled on 25th November, 2025 before the Floor of the County Assembly. Those letters were not forwarded at the beginning when this resolution was forwarded to the Senate. Those letters only emerged on 1st December, 2025 when now, they were presenting their second set of documents.

Hon. Senators, what is this voting by proxy? Section 20 - I repeat because this is very important - says that unless otherwise provided by the Constitution, written law or any other law, decisions shall be by members present and voting. I dare the County Assembly to give us evidence of where voting by proxy has been provided elsewhere, either in the Constitution, the County Governments Act or their own Standing Orders; there is none. Where the law is clear on the procedure, you cannot innovate, improvise or interpret it to suit your illegal intentions.

Assuming for a moment, that even voting by proxy is allowed, was there then voting by proxy? Before you are affidavits by the four Members that are said to have given instructions to vote. One of them, Edna Moraa, has confirmed in her affidavit that she is not even in Kenya. She is in Kansas, United States of America (USA). On the very day, she had no idea that this was happening. She had not seen the Motion or read the contents and yet, someone purports to have instructions on her behalf to vote.

We have Julius Obonyo, Elijah Sagwe and Priscilla Nyatichi who have all sworn affidavits stating that they were in Mombasa on 25th when this Motion was being passed. They have sworn under oath that they did not give anyone instructions to vote on their behalf, assuming even proxy voting was allowed. This is a clear case of not just fraudulent misrepresentation and forgery, but an issue that this Senate should take seriously and recommend criminal charges against the perpetrators of this heinous act.

Hon. Senators, there was a reason why the framers of our Constitution demanded that decisions must be made by members present and voting. I have been here before. There are two ways of being present and voting; either, you are physically present in the Chambers where bars are drawn or, you appear virtually. Even as you appear virtually, the Speaker must confirm that it is this person who is a known legislator of this

House that is voting virtually. The Speaker goes further to confirm that you are actually properly dressed in a parliamentary attire. It is not automatic that you will be allowed to vote even virtually. How then would a letter suffice?

Hon. Senators, this Motion cannot be allowed to proceed to the next level. Doing so would be to legitimise a process that is fraud and meant to thwart the will of the people through their elected representatives.

Luckily, this is not the first time this is happening. Months ago, I was here with Katwa Kigen representing the Governor. The same arguments I am raising are the same arguments he raised during Kericho I and Kericho II impeachment motions and he succeeded. That is why I have crossed the Floor. I am surprised that my learned friend is on the other side now. I do not know what he will be telling you when the very submissions he raised are the very submissions I am raising today.

Hon. Senators, you do not need to call witnesses. My learned friend, Katwa Kigen, brought 18 witnesses here in the Kericho matter. How cumbersome was it? That thing ought to have been ended at the preliminary stage. I dare submit; do the same today. You did it in Kericho I and in Isiolo. These are not proceedings that can be allowed to go to the next level.

Hon. Senators, let me just raise the other issue because of time, I only have three minutes left. Should this Motion proceed to the next level, we have made an application through a letter that we forwarded to this Senate. This letter is dated 2nd December, 2025 and it makes an application to have the Speaker of the County Assembly and the Clerk of the County Assembly summoned to appear before you and produce the original letters that are purportedly given to the Speaker allowing for proxy voting.

I see I have three minutes left, I want to spare them for the rejoinder. My humble submission to you is that, we could be done before lunch hour today because, there is nothing that is before you. What you have is a stillborn child; a lifeless Motion that cannot be entertained.

Hon. Senators, unless you have any questions for me, I beg to submit that these Senators have other crucial businesses to attend to other than attending to a stillbirth Motion.

Thank you. I rest my case.

Counsel for the County Assembly, your 20 minutes starts running from now.

Good morning, Mr. Speaker, Sir, and hon. Senators. It is our argument that the issue being advanced in respect to Nyamira is very different from the one for Kericho and I will come back to that. However, I would like to start from where Kericho left, being that when we raised the preliminary objection, the general position of the Senate was that the people of Kericho, on their complaint brought through the MCAs, should be heard.

Mr. Speaker, Sir and hon. Senators, we pray that the same be applied in respect to Nyamira. That this matter proceeds and you hear the concerns of the people of Nyamira and if it necessarily will entail your having to combine a determination of the preliminary objection together with the merits of the issues, we pray that that be applied.

The second issue is that my learned friend's argument on the preliminary objection was that we could probably just agree on the bottom lines. The first bottom line is that we agree that in the year 2022, there were 35 Members of County Assembly (MCAs) who were sitting or were supposed to sit in Nyamira County. However, as of November, 2025, there were only 32. With that understanding, my learned friend then proceeds to say that you should determine the two-thirds based on the figures determined by the Independent Electoral and Boundaries Commission (IEBC). For purposes of advancing that argument, they brought in Volume two at page nine to 42, in which they provide the list of the MCAs that had been elected and say that IEBC has determined the issue of the number of MCAs for Nyamira and cast it in stone.

I would like to read the phrase used by the IEBC on that issue. Page nine, Volume 2A of the Governor's Bundle. I will read the last three lines. Page nine, that is where the declaration of the results is set out.

Hon. Senators, it reads- “The IEBC declares that the persons whose names are listed in the schedule hereunder were elected as members of the various county assemblies”.

You may be having a different volume.

Hon. Senators, it is Volume 2A of Governor's Bundle of documents.

Which page?

Page nine. It is titled The Constitution of Kenya.

Yes. You may proceed.

Mr. Speaker, Sir, it reads that- “The IEBC declares that the persons whose names are listed in the schedule hereunder were elected as members of the various county assemblies, having received the majority of the votes cast in the election held on 9th August, 2022 and complied with the provisions of the Elections Act, 2011 and the Constitution.”

Thank you very much. Mr. Speaker, Sir, our argument then is that the IEBC was not saying that is the limit and the absolute number of the members that were at that time or at any time to sit in the County Assembly of Nyamira. The specific issue of the County Assembly of Nyamira is captured at page 42, where the numbers are set out and then thereafter the top-up figures are provided for.

Mr. Speaker, Sir, and hon. Senators, the point I am making is that when the Constitution and the County Governments Act states that it is two-thirds of all county assembly MCAs, it can only be referring to the MCAs at the material time. It cannot be an absolute, that, for instance, if 10 people have died, or their election has been nullified, then the county assembly cannot function, or if you have somebody who is misconducting himself, like in this case, the MCAs’ case in respect to the governor, then you cannot do anything. I pray that you juxtapose that argument with the fact that in

Kenya, we had, for a very long time, a lack of IEBC. Is it the case, then, or will the Senators then take the proposition that where we have limitations in the process of filling up the positions in the county assembly, then no activity should go on?

Secondly, the county assembly has, over time, enacted legislation. If you were to hold that the two-thirds must be out of the 35, the ideal 35, are you then saying that all the legislation that has been passed, all the appropriation bills that have been passed, were all null and void? We argue that the intention of the Constitution and the County Governments Act is that it is two-thirds of the people who are there at the material time. Now, I should probably just explain and account for the three that brought the shortfall from 35 to 32. The first one was one Hon. Thaddeus Nyabao, who was elevated to be a speaker and resigned. He was replaced by another MCA on 1st December.

The next MCA who left the scene was Elijah Osiemo, who passed on in August,

Mr. Speaker, Sir, I just want to invite you to the fact that the Nyamira County Assembly has previously used the proxies and we would like to have an opportunity to adduce evidence to that effect when we come to the full hearing.

My learned friend said that I will not be able to refer to any of the Standing Orders supporting the proposition. Standing Order No.67 of the Nyamira County Assembly Standing Orders provides for three means of voting; that is, secret voting, roll call voting and electronic voting.

Now, roll call and electronic voting is extensively described in the Standing Orders. The secret ballot voting system is not extensively explained in the Standing Orders and that, therefore, leaves room for the Speaker to use Standing Order No.1 and give guidance.

In the specific case of this voting, which is the subject of the impeachment that has been placed before you for determination, the issue of the use of the proxy was presented to the Speaker. The Speaker was invited to the fact that some people have sent proxies, authorising and giving proxies powers to vote on their behalf. Those documents were produced. They are in the HANSARD.

The Speaker of the County Assembly, in exercise of his authority under Standing Order No.1, authorised the use of the proxies. Therefore, it is our argument that the use of the proxy was properly considered, evaluated and determined and that it is properly allowed by Standing Orders No.1 and 67.

I would like to cede the remainder of my minutes to my learned friend, Mr. Mokua, on the two preliminary issues.

Thank you, Mr. Speaker, Sir and Hon. Senators. For record purposes, my name is Mr. Mokua Ndubi. In determining this preliminary objection by the Governor's side, we urge this Senate to be guided by the elements of our preliminary objection as espoused in the most celebrated case of Mukisa Biscuit.

Mr. Speaker, Sir, you will agree with us that this particular preliminary objection fails all the three tests that were set out in that very old case. First of all, a preliminary objection is supposed to be purely on a question of law. Wherever there are questions of facts to be interrogated, then a preliminary objection ought to fail, as is the case before this Senate.

There is a contestation as to the exact number of the MCAs in Nyamira as at 25th November, 2025, when this impeachment Motion was taken.

On the Governor's side, they are contending that the MCAs in Nyamira were 35 in number. On the Assembly side, we are contending that the total number of MCAs were 32 in number. Therefore, there is a contested question of fact, even on the baseline, on the total number of MCAs that were present in Nyamira County Assembly as at 25th November, 2025.

The second reason as to why this preliminary objection does not meet the second element in the Mukisa Biscuit case is that a preliminary objection is raised and argued on the assumption that all the facts that have been raised by the other side are correct. The Governor has filed an affidavit together with his witnesses. This, therefore, means he is contesting the factual issues that have been raised by the county assembly.

To that extent, the matter has to go for full trial, so that the Senators can make their own independent determination on the factual issues that have been contested.

In the Kericho I impeachment, there was general consensus, both by the Governor's side and the Assembly, that the total number of MCAs were 47 and that those who voted were 31. So, what was left for the Senate was to determine the threshold; whether it is 31 or 32. That impeachment collapsed at that juncture.

In Kericho II, there were contested factual issues. That is why the matter had to go for full trial and then eventually the Senators had to rule on the issue of the threshold. It is our submission that the position in Kericho Impeachment II is the one that is obtaining in the present impeachment proceedings. There are highly contested issues of fact which cannot be determined.

Finally, on the third limb as to why this preliminary objection ought to collapse is that a preliminary objection ought not to be raised where issues of discretion are to be determined.

Mr. Speaker, Sir, the County Assembly of Nyamira Standing Orders, especially Standing Order No.1 vests power upon the Speaker to exercise discretion and to rule on procedural aspects which are not expressly provided for in the Standing Orders.

To the extent that the Governor’s side is challenging the Speaker’s exercise of his discretion to allow voting by proxy, the preliminary objection ought to collapse.

Counsel for the Governor has indicated that these four MCAs never delegated their power to vote. On our end, it is our case that they did delegate. Sincerely speaking, at this juncture, how can a Senate sitting believe the Governor’s side and fail to believe our side merely because we are being told affidavits have been filed?

Mr. Speaker, Sir, if we are allowed to proceed to full trial, we will bring for you a phone where one of the MCAs sent a letter on WhatsApp. We will provide the phone in its original form. We will also provide email correspondence by these MCAs who are alleging that they never allowed to be voted for by way of proxy.

Under the doctrine of silence of laws, where an Act of Parliament is silent on a particular item, then generally, that Act does not provide for a certain action and at the same time, it does not prohibit a certain action. To the extent that the Nyamira County Assembly Standing Orders are silent on the aspect of proxy voting, they do not prohibit or provide for. The general provision of law is that where an Act of Parliament is silent on any item, that action is allowed. It is therefore our case that voting by proxy is allowed under the Nyamira County Assembly Standing Orders.

Finally, a calculation of two-thirds of 32 translates to 71.875. It is our case that the two-thirds threshold was not just met but, in fact, surpassed. We can only demonstrate that once we proceed to full trial.

On the second limb on summoning the Clerk and the Speaker of the County Assembly of Nyamira, we pray if our colleague can drop that request. We undertake to avail one witness; the one who was given the four documents. He will avail the documents, his mobile phone and the email to which the document was sent to him.

Mr. Speaker, Sir, we pray that you dismiss this preliminary objection; allow this matter to proceed to full trial, so that the whole world can see the atrocities that have been

committed on the people of Nyamira by His Excellency the Governor Amos Kimwomi Nyaribo.

We humbly pray that you dismiss this preliminary objection. In the alternative, allow us to proceed to full trial and in the end, the Senators will determine on the preliminary objection as their first issue. We humbly submit.

I thank you, Mr. Speaker, Sir.

Thank you, Mr. Speaker, Sir. With your permission, I had reserved three minutes.

Okay, then those are eight minutes.

I will use three minutes, then my learned friend will proceed. Mr. Speaker, Sir, pleadings in respect of this impeachment were closed on 1st December, 2025. All parties were required to file their respective documents at the close of business on 1st December, 2025. There has been no attempt by the County Assembly to respond by way of affidavits controverting their affidavits that are on record by the four MCAs. None. They had that opportunity, but they did not do it.

Therefore, in respect of that piece of evidence, it is uncontroverted. That is the position. That is a fact that has been admitted because they had the opportunity to file their own affidavits and to respond to this issue. They have not. Therefore, we are squarely within the mandate of a preliminary objection because this is a fact that is not controverted.

Secondly, and lastly, the learned counsel has sought to seek refuge under Standing Order No.1 of the County Assembly of Kericho. Let me remind him what Article 181 of the Constitution of Kenya, 2010 states. It states as follows-

“That Parliament shall enact legislation providing for the procedure of removal of a county governor on any of the grounds specified in Clause 1.”

Pursuant to that power, this House enacted Section 20 of the County Governments Act, which, in case the learned counsel has not read, states as follows-

“Except as otherwise provided by this Constitution, this Act

, or any other legislation, any question proposed for decision by the county assembly shall be determined by a majority of the Members of the County Assembly present and voting.”

Can you be present in absentia? It is an oxymoron when he runs and seeks refuge at Standing Order No.1, which provides for issues that have not been expressly provided for. Section 20 provides for the voting procedure. Therefore, the Speaker cannot run and innovate when there is a clear provision of the law.

Thank you, my learned Friend.

Thank you, Mr. Speaker, Sir. For the record, my name is Zelmer Bonuke, counsel for the governor. I will address the issues that have been referred to by the other side of the county Assembly.

I have heard them raise the issue of Kericho County and how the proceedings of this House were concluded. It will be noted and on record that upon the proceedings being terminated, the Senate resolved to vote on the preliminary objection first before delving into the other grounds. What then does that mean, hon. Senators? We do not have to waste time on an illegality in this space.

As my colleagues said, the hon. Senators have a lot to do and we have highlighted a significant point or question of law on the threshold. Let me take you through what constitutes the Nyamira County Assembly. It has 20 elected Members, 11 Members form part of the gender top-up; four in the marginalised category, which makes them 35. Nothing changes.

I will put in context that while referring to the Constitution of Kenya, under Article 138 on the election of the President. Allow me hon. Senators to refer to Article 138(4)(a), which says-

“A candidate shall be declared elected as President if the candidate receives- -

Hon. Senators, we urge you to consider our preliminary objection and especially on this point, on the threshold. If you are told that the issue of proxy has to be called as witnesses, that is fine, but then we will determine the first question on whether this Motion met the threshold. The answer is a resounding no.

We yield to that, hon. Senators. I thank you.

Mr. Speaker, Sir, very interesting arguments have been made about membership and I want to seek clarification, especially from counsel for the Governor on the question of membership.

You have stated very well what Section 33 (2) of the County Governments Act speaks to, that the Motion has to be supported by two-thirds of all the members of the assembly. I want you to tie that to the provisions of Article 103 (1) (a) on the vacation of office upon the death of somebody. Can that person still be referred to as a member of the assembly for purposes of the determination of membership?

Therefore, there is a very interesting point that was raised by counsel for the County Assembly. For instance, if by catastrophe, we have 35 members in the assembly, 15 of them are in a bus and the bus plunges into a river and they are no longer MCAs. If an issue of impeachment were to arise in determining two-thirds of those MCAs, is it the case for the governor that we will still use the number that was determined at the election in August of 2022?

Thank you, Mr. Speaker, Sir.

Yes, counsel for the Governor, you may proceed.

Thank you, Mr. Speaker, Sir, and thank you, Senator for Nairobi City County, for that question.

My answer to that question is, the impeachment process is governed by three pieces of legal provisions- Article 181, Section 33 and the Standing Orders. It does not anticipate a scenario whereby there will be a vacancy that will have to last for so long, such as to affect the business of the House.

Let me just give this as an example. Assume that for a moment, half of the House is not present, either by tragedy or disaster. What happens to that House? Do we then reduce the threshold to the remaining ten or five? We cannot do that. So, if there is a vacancy, it does not affect the threshold because the law has a mechanism of filling that vacancy. That would be my short answer to that issue. Thank you.

Sen. Wambua, please, proceed.

Mr. Speaker, I have a similar question, but this time to the Counsel for the Assembly, Katwa Kigen.

I would like the lawyer to address me and this House on the question of the membership of any Assembly. At what point does that membership determine? Does it

determine immediately after elections and after political parties have had an opportunity to discharge their obligation to nominate members? Or is it a moving target? Is it one number today, a different number tomorrow, a different number next week? At what point does this number determine?

I thank you.

The Counsel for the County Assembly.

Thank you, Mr. Speaker. The direct answer to the question from us is that it is a moving target. The reality of it is that at every given time, the representation has to continue. Various activities have to be done. There is a need to approve budgets and determine issues. Therefore, the fact that there is a continuous need to attend to issues on behalf of the public makes it a moving target. Therefore, at every given time, the people who are available to transact business on behalf of the people who elected them is the determining factor of the total bottom line number of people who are to vote. That is my answer to the question.

Sen. Boni, please proceed.

Mr. Speaker, I am convinced by what the Counsel for the Governor, Mutuma, has said; that, you cannot find voting by proxy anywhere in the Standing Orders of the County Assembly or anywhere else yet, this is going to guide us to decide on your preliminary objection, Mr. Mutuma. Do you not think reading the Standing Order in its entirety, we should give the County Assembly an opportunity to demonstrate to the House that the Speaker proceeded under Standing Order No.1 of the County Assembly, allowed by proxy, and maybe he did so because of some usage or tradition that preceded that decision? Do you not think we should allow this to proceed, so that we hear evidence to make a decision instead of just condemning them and telling them they are wrong?

Counsel for the Governor, you have a few seconds to respond.

Thank you, Sen. Boni Khalwale. An argument based on points of law or the interpretation of law cannot be a factual issue. It is based on legal arguments. They had the opportunity to submit, and that is why this Senate directed us to prepare written submissions and bring them before the House. That is why they have given us 20 minutes to demonstrate to you through legal arguments how the Speaker can rely on Standing Order No.1.

There is no witness who is coming to testify on a question of law. It is purely an interpretation issue which does not require evidential interrogation. The purpose of going through a trial, Hon. Senators, is for you to look at the facts, cross-examine the witnesses on their version of factual issues, and then render a decision of fact. Questions of law---

Counsel for Governor, time is up. Hon. Senators, I will be giving my ruling at 2.30 p.m., on this particular matter.

All rise. Hon. Senators, it is now 1.15 p.m., time to adjourn the Senate. The Senate, therefore, stands adjourned until later today, Wednesday 3rd of December 2025 at 2.30 p.m.

The Senate rose at 1.15 p.m.