NAIROBI, Kenya, Oct 14 — Beleaguared Kericho Governor Eric Mutai has survived an impeachment motion due procedural technicalities linked to an unmet threshold.
Senators threw out the impeachment motion citing that Kericho Members of County Assembly’s failure to meet the two-thirds threshold to remove him from office.
Speaker Amason Kingi ordered a vote on the matter after he declined to make a ruling citing the implications a decision on the matter would have on the impeachment trial.
A majority of Senators supported the preliminary objection where 34 MCAs voted in support of the objection while 14 voted against the objection.
“The motion having been approved the hearing proceedings on proposed removal from office by impeachment of Erick Mutai, the govenor of Kericho county is hereby terminated,” Kingi decalared.
The vote followed lawyer Katwa Kigen’s presentation that the 31 MCAs who voted for Mutai’s impeachment fell short of the threshold computed at 31.3 MCAs.
Kigen argued that the figure could only be rounded off upwards to 32 while the County Assembly defended its decision to round off the figure to the nearest whole number being 31.
Speaker Kingi had ruled out the preliminary objection that sought to halt the proceedings based on High Court orders issued at Kericho.
The Senate Speaker cited ruling issued by the then Deputy Speaker Kithure Kindiki that Judiciary cannot injunct Parliament based on its constitutional mandate and separation of powers.
“I rule that any injunction interfering with the work of Parliament has no effect on Parliament in exercise of its constitutional functions. Such court orders have no effect on the National Assembly or the Senate or any other committees,” Kingi stated.
Mixed reaction
The question on the impeachment threshold at the County Assembly elicited debate with both the Governor and County Assembly drawing the attention of the Senate to various rulings in the matter.
Mutai’s counsel cited past precedents in the impeachment hearing against Former Governors where the threshold for the impeachment was capped at 32 out of the 47 MCAs.
“The impeachment was passed with 31 votes and 31 is not the same as 31.3. If you combined the use of the word at least in Section 31 of the County Governments Act when you scale down to 31 as opposed to 31.3, you have fallen short of the requirement of the statute,” he remarked.
“This motion could have succeeded if it had 31.3 and above. When it scaled down to 31, it fell short of the provisions of Section 33 of the County Governments Act and Kericho County Asembly Standing Orders,” Kigen added.
Kigen expressed it would be discriminatory if the impeachment motion would not be thrown out on the basis on procedural technicalities since the process was flawed on the number’s threshold.
Mutai’s counsel brought to the fore the ruling of the National Assembly Speaker on October 1, 2024 on the threshold of voting for the impeachment motion against Deputy President Rigathi Gachagua where the decimal fraction was rounded upwards.
“The criteria used to consider impeachment of the Deputy President at the National Assembly used one formula that you should move a step further because you can’t have a fraction of a person. This should not change in the case of Eric Mutai and be that you scale down,” he said.
Precedent
Kericho MCAs through their lead counsel Elias Mutuma opposed the preliminary objection anchored on an order staying Senate proceedings saying it could only be substantiated with cross examination of witnesses in the proceedings.
“The County Assembly has brought evidence to show that they were no court orders. The County Assembly argues that the court orders are either forged or manipulation of the judiciary system. That evidence can only be tested if we bring evidence before you,” Mutuma said.
On the threshold criteria, the MCAs expressed that the matter has been contested previously in other jurisdictions.
The County Assembly held that the matter should go to trial saying rulings on such criteria should not be subjected to the Speaker but the whole house.
“This is an issue that has been contested and we will be bringing evidence to show you that the threshold was met,” the legal counsel stated.
“Are you able to make a determination without looking at evidence that both parties are relying on?” the counsel posed.
Noting the fundamental preliminary objection, Senate Speaker Amason Kingi opened the preliminary objections for interventions by senators who expressed varying opinions on the matter.
Majority Leader Aaron Cheruiyot proposed that the proceeds to full trial with the Senate making a final ruling.
“There’s no citation by Mutai’s counsel apart from application of mathematics and this theory that we want to be told there’s no half or quarter of a human being. Being a house of procedure we would establish what has been established in our court of law,” Cheruyoit said.
Jurisprudence
Majority Whip Boniface Khalwale pointed out that if Mutai’s impeachment motion failed to meet the necessary threshold then it should be thwarted citing past jurisprudences on the impeachment motions.
“It not possible for a human being to be a fraction. On this let’s give it to the Governor that a fraction of a human being doesn’t exist, next time come with full numbers,” he stated.
Minority Whip Ledama ole Kina cast doubt on clarity of the view to round off the two-thirds figure to the nearest whole number.
“On the finding of a matter to do with JSC where the courts stated that you round off to the nearest whole number, what would be the nearest whole number in a matter which is 31.3 is it 31 or 32?” ghe posed.
Homa Bay Senator Moses Kajwang dismissed the notion that the impeachment motions should be halted based on the preliminary objections pushing for the matter to go on trial with the final vote on the issues raised done at the tail end of the proceedings.
“Procedural fairness demands that the governor of Kericho has been accused of gross misconduct and all sorts of allegations has been made and this is the opportunity for him to defend himself,” he held.
“If we were to be obsessed with procedural technicalities in 1992 it would have been John Haron Mwau who would have been President of Kenya,” Kajwang noted.
Source: capitalfm
