Paul Muite’s Final Submission That Could Save Gachagua’s Impeachment

Añadido: 2026-05-24

[00:00:00]When they gave themselves a 2010 constitution [music] consider the right to a fair trial [music] so fundamental that they included the right to a fair trial in article 25 >> [music] >> as one of those rights that cannot be limited.

[00:00:27]Show the importance that the people accorded the right It is my submission that central to the right to a fair trial is according a part the opportunity to go in the witness box, take the Bible or the Quran and give oral evidence on oath.

[00:00:59]It is not enough to say you have filed an affidavit.

[00:01:03]How many times has this court and other tribunals changed their minds by observing the demeanor the body language of a witness answering questions in chief cross-examination and in reply.

[00:01:27]It's a fundamental right.

[00:01:32]The first pres- the first petitioner His Excellency the Deputy Marshal wanted to have that opportunity.

[00:01:44]He would have been led in chief to respond to all the false allegations in the 11 charges that we are faced he would have been led in chief he would have given nothing.

[00:02:07]Number two, he would have had the opportunity in cross-examination to demonstrate to the Senate because of his veracity in answering questions.

[00:02:26]His demeanor, his body language when answering questions in cross-examination would have been an important attribute of that right to a fair trial.

[00:02:44]Including reply in such a fundamental matter as removal from office as Deputy President having been elected by over 7 million Kenyans.

[00:03:05]That right to a fair trial, the denial to accord him that opportunity amounted to a gross violation of his constitutional right to a fair trial.

[00:03:21]And by both your leadership, this point in this submission that I'm making about the importance of the tribunal, the Senate in this case, having the opportunity to see the veracity is a witness prevaricating, in answering questions, or is he confidently answering the questions without hesitation.

[00:03:56]That opportunity for the first petitioner here to have persuaded the Senate irrespective of the affidavit.

[00:04:12]That opportunity, this is not the first time that that issue is being raised here before this court is enough.

[00:04:20]However, I invite this court when it retires to look at the answer which is annexed.

[00:04:28]The answer of the Senate of both 16th and 17th of October is annexed to the affidavit of Mr. Nyegenye the clerk of the Senate.

[00:04:46]The proceeding the Hansard proceeding of the 16th [music] are in battle one.

[00:04:56]The Hansard proceedings for the 17th is battle two. Both are annexed >> [music] >> to battle three.

[00:05:02]And when you retire, go through it and you will see that I drew the importance of oral evidence on oath to the Senate.

[00:05:14]I say at page 12652 [music] of that Hansard paper.

[00:05:23]I say point number two is the importance of honorable Senate senators to see with their own eyes how a witness with his hands cross-examination.

[00:05:39]There are many times when different impressions you'll be given by a written document. And yet, when cross-examination takes place, individuals change their minds.

[00:05:57]One can only make a decision on whether this witness is believable or not when they see his demeanor in person.

[00:06:08]There is nothing to replace orality through cross-examination.

[00:06:13]There are many witnesses whose statements will be will be impressive.

[00:06:19]And yet, when they begin to give evidence orally, that impression changes on the mind of the jury.

[00:06:30]The Deputy President wishes to subject himself to cross-examination and on oath to deal with the evidence given adverse to him by witnesses here.

[00:06:47]So that honorable sen- senators can have an opportunity of making a decision, is it the Deputy President they believe or those other witnesses.

[00:07:01]That opportunity can only come through orality and cross-examination.

[00:07:08]What this house elects to do, they will make that decision on Tuesday because the first petition was applying for adjournment until the following Tuesday.

[00:07:20]And I said I'm always an optimist.

[00:07:23]I'm living in the belief that the doctors will be able to put whatever wrong whatever is wrong with the Deputy President, will be able to put it back in place so that he can be here on Tuesday.

[00:07:38]If he's not here, let the decision of what this honorable court will then do be made on truth. That is a humane way of going about the matter uh about which no one had any control.

[00:07:58]And for the Senate to have deprived that opportunity to the Deputy President, the first uh petitioner, on the basis of their misreading and misapplying Article 145.

[00:08:21]And of course, not taking into account Article 121.

[00:08:26]But they had to conclude the impeachment within the two hearing dates, 16th and 17th, at a time where the Deputy President had been taken ill and admitted to the hospital.

[00:08:47]That, in my submission, amounted to a gross gross violation of his right to a fair hearing by a quasi-judicial body, the Senate, which could not even be limited.

[00:09:08]And my lords, your leadership, I was not the only one raising that issue.

[00:09:15]When you go through that Hansard report, page 12677, you will see the Senator for No, [music] Senator for Nandi County. No, the county in Nandi.

[00:09:36]No, the county of Kisumu.

[00:09:39]He actually agreed with the media. You will see what he says on record in the hands of As I begin, I want to to wish my brother and friend regarding our shock war a quick recovery after that unfortunate incident.

[00:10:00]The ongoing process has largely gone on well until the adherence of article 50.

[00:10:14]Uh the keeper.

[00:10:19]And he goes on to say, "We have not succeeded in giving a fair hearing to the deputy president." That is after he had quoted article 50.

[00:10:34]The reading of article 145 4 does not specify the timeline in which the deputy president's removal can be listened.

[00:10:46]It is only by a special committee that it provides for 10 days.

[00:10:55]So, that was very unfortunate.

[00:10:58]In the principle that justice should not only be done, but must be seen to be done.

[00:11:06]Many Kenyans are asking questions. That is a senator contributed from the floor of the Senate.

[00:11:15]And let me make this submission.

[00:11:18]There was never any issue in the Senate on the 17th when I informed the Senate through the speaker that the deputy president had been taken sick and he in current hospital.

[00:11:34]No one raised any issue whatsoever. In fact, if there was time, I would have taken the court through the contributions by members but permit me to invite the court to look first and foremost at the speaker of the Senate what he said on that 17th.

[00:11:56]Speaker of the Senate who speaks for himself and for the house.

[00:12:01]And the speaker said, "Honorable sent Senate, [music] ladies and gentlemen, in conclusion, let me take this opportunity on my own behalf and on behalf of the Senate to convey our sincere sympathies and wishes for quick recovery to His Excellency William Ruto, Chagua AGH, Deputy President of the Republic of Kenya. That I submit should be accorded weight by this honorable court because it is the speaker accepting that the Deputy President said wishing him quick recovery.

[00:12:50]And he was he was not the only one.

[00:12:53]As I said, I'm not going to read it through, but the minority leader, Senator Mathayo Osotsi, sent good wishes for quick recovery.

[00:13:07]Na Bwana Paul Sang, kupitia senior counsel, he was truly kwa sababu client wako ni mgonjwa.

[00:13:16]Ugonjwa sio jambo.

[00:13:20]Ugonjwa ni jambo la Mwenyezi Mungu.

[00:13:23]Hatuwezi kusema kwamba mtu hawezi kuwa mgonjwa. Mtu jumbo jumbo jumbo jumbo.

[00:13:33]I know it's a Quorum of Quorum. Quorum Quorum Quorum.

[00:13:37]Mumbo jumbo application for a Senate.

[00:13:40]Do not care if you have a headache.

[00:13:43]When you see Mumbo jumbo.

[00:13:47]I'm going to have food.

[00:13:49]And it will be to my dinner.

[00:13:51]And there are many other senators who sent their wish.

[00:13:57]So that the summary is this.

[00:14:00]The issue of the Deputy President having been taken sick.

[00:14:08]And he had attended the full day the previous day 16th of July.

[00:14:14]He had attended the whole morning of 17th.

[00:14:19]The only day he was sick.

[00:14:22]At lunch when he was rushed to the hospital.

[00:14:25]But the point I'm [music] making in here is that that was never ever in dispute whatsoever.

[00:14:37]It was accepted.

[00:14:39]And because the Senate was a Quorum of a judicial body they could have sent their own doctor to Karen Hospital to confirm that the honorable regarding the Shagwa was indeed unwell and in hospital.

[00:15:05]And but not I made that very very clear. You will see from page 1 to 648 when I addressed the Senate again through the Deputy Speaker.

[00:15:22]Indeed. And I said [music] I would like to inform honorable senators My lord, this is responding on the issue of a fair trial.

[00:15:35]To deny somebody an adjournment when that person is admitted sick was a gross miscarriage of justice, a violation of his constitutional right.

[00:15:50]I suspect he just wants to interrupt a point that he perhaps You know, the point, my lord, is He wants to stop me. No, honorable members, as a very senior lawyer, we honestly wouldn't want to interrupt this presentation.

[00:16:07]But he's making a reply to his agreeing and crashing his case afresh, taking it through, I don't know, state law, the aspects of evidence. He did not allow by that this very I have really limited we have consulted here and he had a lot of restraint. We are forced make this objection.

[00:16:28]My lord, my lord, that is my problem. I must have avoided uh raising those issues. But when he reads statements, when he reads conditions and contributions of senators including some in Kiswahili which he correctly reads It is difficult for us to have an opportunity to respond to some of those factors we cannot respond to this. He can respond on principle. We have no problem with the principle of fair trial, but let him avoid those speeches, especially and even from Senator Key.

[00:17:06]No such thing as unity in your sitting in the Senate, deliberate.

[00:17:10]But my lord, your leadership, you will remember my good friend here senior counsel that you will agree.

[00:17:19]He needs a lawyer.

[00:17:20]he said that the deputy president was faking illness.

[00:17:25]He wasn't sick.

[00:17:27]That is the point I am declaring. It's an issue of law. Was he given a fair trial or not? Obviously, if he was faking sickness, then one can argue that he was not his right.

[00:17:44]So, it's very, very important on that issue.

[00:17:48]In my submission, the Senate never raised, on the 17th of October, any question as to whether or not, regarding the shape of his Excellency, was sick. He was admitted. That is the point that it is This answer it is them.

[00:18:10]Professor Tom Ojienda is leading Mule and [music] Awuor Advocates.

[00:18:18]They are the ones who filed [music] this answer. It's part of the record before this honorable court.

[00:18:26]What What harm is there in my strengthening the violation of the constitutional right to a fair trial to a person who is in hospital?

[00:18:39]And I'm not I'm not Permit me just to draw your attention to it. I said I would like to inform honorable Senate that I have been able to contact the doctors at Karen Hospital.

[00:18:52]There is a team of doctors who are looking after the deputy president because of his condition.

[00:18:59]I was not able to directly talk to him on the advice of his doctors.

[00:19:05]They said he must have complete rest for the time being.

[00:19:11]However, I was informed by his doctors that he's currently suffering intense chest pains.

[00:19:22]And I did not want to require [music] father.

[00:19:25]I asked I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I There are many many senator senator who asked me to pass wishes for speedy recovery. Now, for him to have been deprived of that right of being led in chief, being cross-examined, answering these questions, he would have had the opportunity, for example, to address the false allegations that were made by senior counsel Dr. here, that he had grabbed the estate of his brother, ground eight, without any substance. If he had been given that opportunity, >> [music] >> he would have been able to demonstrate that actually he had the Well, it's the will was forged even before his brother's body had gone cold.

[00:20:28]Victory dressed in eloquence It doesn't translate into truth.

[00:20:37]This I say that the servant would have been able to address his right to appear at trial was grossly violated. And I ask this court to ignore that victory.

[00:20:55]Just like I asked this court to ignore Dr. O'Connor, my friend, attempting to make a mountain out of a molehill On the basis of the initials, R. G.

[00:21:12]Always, these very courts does not put their full names of parties to a demotion case, the demotion file.

[00:21:22]No, they put initials. Why?

[00:21:27]To respect the constitutional right privacy.

[00:21:34]Nothing, no.

[00:21:35]And Dr. Lekonyane was here with the file, with the documents, I actually expected my colleagues on the opposite side to ask Lekonyane to table the documents was being accused of not having annexed.

[00:21:52]He was never >> [music] >> asked to table any documents.

[00:21:56]The second point before Professor Tom Moyane now jumps up again.

[00:22:05]It's my submission.

[00:22:07]The reason for this political talking [music] being pushed on this by the Attorney General through senior counsel Professor Wim Trengove SC and the State through Professor Tom Moyane.

[00:22:23]The real reason is that they don't want these courts to evaluate the evidence presented by Mduse in court.

[00:22:39]They don't want you to examine the record counsel of the cross-examination of Mduse who was primary witness.

[00:22:56]Cross-examination by senior counsel Advocate Mpofu.

[00:23:00]Why are they trying to stop [music] this court from doing that? Because they know that if this court does that, court can prevent any type of push.

[00:23:14]That there was here no evidence to form the basis of conviction and even a simple traffic offense. Leave alone impeachment of the deputy president.

[00:23:29]That is why they are telling this court that on the basis of that doctrine, political doctrine, your mandate is to check whether the procedural aspects were complied with by the Senate and by the National Assembly. Procedural aspects.

[00:23:52]But don't go further to examine the evidence.

[00:23:57]My lord, my answer to that is that they are meritorious.

[00:24:02]By the hand by the Court of Appeal, by the Supreme Court, including the so-called [music] case.

[00:24:11]And there were other cases in which these [music] courts have asserted their jurisdiction.

[00:24:20]Second point I'd like to make, my lords, against the people of Kenya, when they gave themselves >> [music] >> the 2010 constitution.

[00:24:30]And I invite this court to have a look at that. What?

[00:24:34]Article two.

[00:24:36]Article one about sovereignty, Article two >> [music] >> about everybody, every institution, government, being bound by the constitution.

[00:24:48]The people of Kenya made two important decisions. First of all, it is not by accident [music] that Article one was placed in Article 1 and Article 2 about the supremacy of the Constitution was placed in Article 2.

[00:25:07]It was because of the importance of the Constitution.

[00:25:14]So, the point I'm making, the submission I'm making to your lordship is that the people of Kenya made two important decisions. One, they placed their confidence, their total trust in the Constitution.

[00:25:33]They did not place that total [music] trust in the executive, the National Assembly, or in the Senate. In the Constitution.

[00:25:47]That's what they did in Article 1 and Article 2.

[00:25:53]The second important decision they made was that they, the people of Kenya, by ratifying that Constitution, said in Article 165 that it is the court, they placed their confidence in the judges of the High to interpret and apply the Constitution and decide whether anything said to be done under any law was done in that law or not.

[00:26:37]That is a jurisdiction, that is a power that cannot be taken [music] by this court for whatever political considerations there might be.

[00:26:48]My Lord, the 10 days limitation, even on a plane reading article 145 was in sub article 4 limited to the special committee doing the investigations.

[00:27:09]As far as proceedings in the plenary on the same they would have proceeded on the basis of article 159 >> [music] >> sub article 8 where no time is prescribed nothing will be done within a reasonable time.

[00:27:31]My lord even the speaker of the Senate had at least agreed to adjourn until Saturday.

[00:27:40]That motion was moved voted by the members the senators they voted against even adjourning until Saturday.

[00:27:53]And they proceeded and passed sick in hospital they proceed.

[00:28:03]That was a gross violation. So on the basis of the political question on the basis of a fair trial this is a petition that the court this honorable court should allow permit me to say only one word about public participation which is this that given the importance of article 1 article 10 [music] and article 1 118 on public participation assume [music] greater significance in impeachment proceedings because of the sovereignty interested in the people.

[00:28:57]And the public participation here was quite simply a the first petitioner looks up to you to do him justice that was denied him in the Senate impeachment proceedings.

[00:29:23]That is what the people of Kenya because it is them who are suffering.

[00:29:29]It is them who distributed these votes.

[00:29:32]That is what this case is all about.

[00:29:36]It's beyond being about And finally, on the issue of the monument you're being addressed about that, this is not [music] a simple employer-employee case as was the case of the chairman.

[00:29:54]This is a petition of an elected official governed by article 20 Article 20 three.

[00:30:27]The award of damages is going to be right to award damages.

[00:30:33]It is article 162.

[00:30:36]It is 162 10.

[00:30:38]Yes, it's article 23.

[00:30:44]Yes.

[00:30:46]E where the court is giving specific jurisdiction to award damages.

[00:30:55]So, I pray that you permit this petition which will set the precedent not just for rather than Sharma but for future future future. I thank you.

[00:31:11]Thank you.