Nairobi — Nyamira Governor Amos Nyaribo survived a third impeachment attempt after the Senate ruled that the Nyamira County Assembly did not attain the constitutionally required two-thirds majority to remove him from office.
The decision brought an abrupt end to proceedings after a decisive vote in which 35 senators supported a preliminary objection, with only four opposing it.
The ruling delivered by Senate Speaker Amason Kingi affirmed that the impeachment motion forwarded by the County Assembly was invalid and incompetent, having failed to meet the mandatory threshold required under Article 181 of the Constitution and Section 33 of the County Governments Act.
The debate began earlier in the day when Governor Nyaribo's lawyer, Elias Mutuma, raised a preliminary objection challenging both the numerical threshold used by the County Assembly and the validity of votes cast.
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According to Mutuma, the Nyamira County Assembly comprises 35 members, meaning 24 MCAs would have been required to support the impeachment.
Yet the Assembly recorded 23 votes, despite only 19 MCAs being physically present in the chamber during the vote on November 25.
Mutuma argued that this discrepancy could only be explained by what he termed illegal and fraudulent proxy voting.
He told the Senate that four MCAs whose names appeared as having voted were not present and had sworn affidavits denying authorising any colleague to vote on their behalf.
He noted that Standing Order 67 of the Assembly clearly requires decisions to be made by members present and voting, making proxy voting alien, illegal, null and void.
The County Assembly's lawyers disputed this position, arguing that the Assembly effectively had 32 sitting members due to three vacancies.
They maintained that the required threshold should therefore have been lower than the figure cited by the Governor's team.
They also defended the Speaker's decision to allow proxy voting under Standing Order 1, saying that while the Standing Orders did not expressly provide for proxy voting, they did not forbid it either.
MCAs argued that the matter required full examination during a substantive hearing, not dismissal at the preliminary stage.
Impeachment Threshold
During the debate on the preliminary objection before the final vote Senators sought clarity on whether vacancies could legally reduce the total membership of a county assembly for purposes of determining voting thresholds.
Senate Majority Leader Aaron Cheruiyot (Kericho) moved the motion on whether to sustain the preliminary objections or terminate the proceedings. He challenged the legitimacy of the process that brought the matter before the Senate.
"We, unfortunately, must ask ourselves whether this matter is properly before us as a house. ... Have we been properly invited? Has a governor come through the mentor, or has it been thrown through the windows to get before the House of the Senate?" Cheruiyot questioned.
Cheruiyot also criticized the Parliament for failing to enact clear impeachment procedure legislation, suggesting this absence complicated the current debate.
"We have refused, and I'm very intentional about the use of the word refused as parliament to pass the law on the impeachment procedure," he stated.
He lamented that if a proper bill were in place, the Senate would be hearing the case rather than debating procedure.
Nandi Senator Samson Cherargei asserted that the political nature of the impeachment process, describing the Senate as a trial chamber where issues are determined by both civil and criminal standards. He concurred with Cheruiyot regarding the need for an Impeachment Procedure Act.
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"They agree that 23 people voted. But if you do the math, it should be 23.33 and when you truncate it should be 24.Do we need to proceed and listen to the matter to full conclusion, like in Kericho II, or do we proceed and terminate like in Kericho I?"Cherargei said.
However, Kakamega Senator Boni Khalwale called for the trial to proceed, allowing parties to prosecute the issues raised by the County Assembly, including the impact of three absent Members of the County Assembly (MCAs).
"We should give parties an opportunity to prosecute that matter. We see which way it should go, so that colleagues, we guide county assemblies, we even guide this Senate," Khalwale argued.
Senate Speaker Amason Kingi offered a communication to guide the debate, clarifying the nature of a preliminary objection.
He stated that established House practice dictates that a preliminary objection must be limited to points of law and cannot require the adduction of evidence to ascertain facts.
