Kericho Governor Erick Mutai survives impeachment

Kericho Governor Erick Mutai survived impeachment after 34 Senators voted to support a preliminary objection raised by his defense

Lawyer Katwa Kigen, leading the governor's defence, told the Senate that the two-thirds threshold had not been met when the County Assembly impeached him.

The Senate got into a debate based on that technicality and finally voted with a result of 10 Senators opposing the preliminary objection.

Mutai had denied all the charges brought against him by Members of Kericho County Assembly who had voted to kick him out of office.

Kigen leading Governor Erick Mutai defence team had requested Senate Speaker Amason Kingi to terminate the impeachment motion since it did not reach the two thirds threshold which is 31.3 . He argued that the Governor had been impeached by only 31 MCA out of 47 MCAs instead of 32 MCAs or more.

Kigen further raised another preliminary objection, stating that the High Court in Kericho had on October 3 this year issued orders restraining the County Assembly of Kericho, the Speaker of the County Assembly , the Senate and the Speaker of the Senate from considering the impeachment matter.

Kingi, however said that an injunction by the court against parliament is a frontal and deadly attack. He emphasized the doctrine of separation of powers saying it was the bedrock of the current Constitution.

“Only 32 MCAs could impeach the Kericho Governor and not 31 MCAs as indicated, even in the election of the Speaker of Kericho County Assembly, it has always been a requirement to have 32 MCAs vote for the winner which is the two-thirds majority to make the election valid,” said Kigen. 

Lawyer Hillary Kiplangat for the County Assembly argued that the nearest whole number for 31.3 was 31 and that Kericho has 30 elected MCAs with 17 Nominated MCAs saying the impeachment met the threshold. 

Elias Mutuma appearing for the Kericho County Assembly opposed Kigen’s assertion denying the existence of court orders stopping the impeachment process and that they produced evidence to prove that the two thirds threshold was achieved.

“The power to make a determination on the matter lies with the Senate, the orders presented are invalid and are not in a position to stop the Senate from hearing the impeachment motion on the basis that the two-thirds majority was not achieved yet we are going to prove that it was achieved,” said Mutuma.

Kakamega Senator Boni Khalwale said no court can injunct parliament asking the defence team of the governor to desist from pursuing that line.

Homa Bay Senator Moses Kajwang said there should be procedural fairness and that Kericho Governor and the Kericho County Assembly should be allowed to prosecute their cases with Senate making a decision on the contentious matter since it currently has the powers of the High Court.

Senate Majority Leader Aaron Cheruiyot said the Supreme Court had ruled that a parliamentary process cannot be injuncted and that Kigen wants to lead the Speaker to make a decision that has not been made before cautioning him not to take that direction and allow Senators to make a decision.

“A similar application had been made during the impeachment motions of former Nairobi Governor Mike Sonko and former Kiambu Governor Ferdinand Waititu, this matter should be allowed to proceed after which the house will make a determination,” said Cheruiyot.

Mutai was accused of gross violation of the constitution and other laws with Misappropriation, misallocation and illegal drawing of county revenue and county finances, misappropriation or abetting misappropriation of publicly raised funds.

The Governor faced charges of abuse of office through illegal appointments, unlawful dismissal and transfers, and usurpation of the Constitutions and statutory functions of county public service subversion, discrediting and impeding of the oversight role of the County Assembly.

Other charges were engaging in indecent and unnatural sexual behaviour and forcing females to engage in unconsented anal sex, dangerous and unprotected sex and persistently intimidating, molesting and harassing county officers who do not sing to his tune, thereby creating an atmosphere of fear, uncertainty and despondency in the county.