Thanks to the Unmet Voting Threshold
Kericho Governor Eric Mutai has managed to escape an impeachment motion after a procedural technicality revealed that the vote to oust him fell short of the required threshold. Senators dismissed the motion, citing that the Kericho Members of County Assembly (MCAs) did not meet the two-thirds majority required to remove him from office.
The Senate Speaker, Amason Kingi, allowed a vote on the preliminary objection instead of making a ruling himself, acknowledging that such a decision could have lasting implications for the impeachment process. The majority of senators backed the preliminary objection, with 34 in favor and 14 against, effectively terminating the motion.
“The motion having been approved, the hearing proceedings on the proposed removal from office by impeachment of Eric Mutai, the governor of Kericho County, are hereby terminated,” Speaker Kingi declared.
Mutai’s Legal Defense
Governor Mutai’s lawyer, Katwa Kigen, argued that the 31 MCAs who voted in favor of impeachment fell just short of the necessary threshold, calculated at 31.3 members, which meant that 32 votes were needed to pass the motion. Kigen insisted that this figure should be rounded up to 32, while the County Assembly had rounded it down to 31. This discrepancy led to a procedural challenge that ultimately saved the governor from impeachment.
Kigen emphasized that according to Section 33 of the County Governments Act and Kericho County Assembly Standing Orders, the threshold was not met. He also cited a ruling made in the National Assembly on October 1, 2024, during the impeachment motion against Deputy President Rigathi Gachagua, where a fraction of the required number of votes was rounded upwards, setting a precedent for Mutai’s case.
Senate Debate and Reactions
During the Senate proceedings, Speaker Kingi ruled out an earlier preliminary objection that sought to halt the impeachment based on a court order from the High Court in Kericho. He upheld the principle of separation of powers, stating that the judiciary cannot issue injunctions against parliamentary processes, a ruling previously established by then-Deputy Speaker Kithure Kindiki.
“I rule that any injunction interfering with the work of Parliament has no effect on Parliament in the exercise of its constitutional functions. Such court orders have no effect on the National Assembly, the Senate, or any of their committees,” Kingi clarified.
Mutai’s defense team leaned on this ruling to argue that procedural fairness had to be maintained. They referenced past cases of impeachment against former governors, pointing out that none of them faced impeachment without meeting the threshold.
Kigen reiterated that it would be discriminatory for the Senate to proceed with the impeachment on the basis of flawed numbers, as the vote had fallen short of the legal requirement.
Legal Precedents and Opposition Arguments
On the other hand, the lead counsel for the Kericho County Assembly, Elias Mutuma, opposed the procedural objection. He insisted that the matter should proceed to trial, arguing that the threshold issue should not be decided by the Speaker alone, but by the Senate as a whole. He also contested the legitimacy of the court orders halting the Senate’s proceedings, calling them either forged or manipulated, and asserted that the impeachment should be decided on its merits.
Mutuma further argued that this procedural debate had arisen in other jurisdictions and should not prevent the Senate from hearing the case. He emphasized that evidence should be presented before making a final decision, stating, “The County Assembly has brought evidence to show that there were no valid court orders. This can only be substantiated with cross-examination of witnesses.”
Senators’ Interventions
The debate drew varied reactions from the senators, many of whom weighed in on the technicalities of rounding off the impeachment threshold. Majority Leader Aaron Cheruiyot pushed for the case to proceed to trial, noting that Mutai’s defense relied heavily on mathematics and technical interpretations rather than concrete legal citations.
“There’s no citation by Mutai’s counsel apart from the application of mathematics and this theory that we want to be told there’s no half or quarter of a human being,” Cheruiyot remarked.
Majority Whip Boniface Khalwale echoed this view, citing past impeachment motions that adhered strictly to the numbers. He noted, “It’s not possible for a human being to be a fraction. On this, let’s give it to the Governor—next time come with full numbers.”
Minority Whip Ledama ole Kina questioned whether the number should be rounded up or down, citing previous court rulings. “On the finding of a matter to do with the Judicial Service Commission, the courts stated that you round off to the nearest whole number. What would be the nearest whole number in a case of 31.3—is it 31 or 32?” he asked.
Homa Bay Senator Moses Kajwang dismissed the procedural objection, arguing that the impeachment motion should proceed to trial so the governor could fully defend himself against the charges of misconduct. “Procedural fairness demands that the Governor of Kericho has been accused of gross misconduct, and this is the opportunity for him to defend himself,” Kajwang stated.
He added that a focus on procedural technicalities could prevent justice from being served, citing past political cases where procedural hurdles affected outcomes.
Conclusion
Governor Eric Mutai remains in office after the Senate ruled in his favor due to the failure of the Kericho MCAs to meet the required two-thirds majority for his impeachment. While his legal team successfully argued that the vote fell short of the threshold, the debate highlighted significant legal and procedural questions that may impact future impeachment motions in Kenya.
For now, Mutai can breathe a sigh of relief, but the narrow escape suggests that the political challenges he faces are far from over. The precedent set by this case could spark more debates on the technicalities of impeachment in Kenya’s county governments.
