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Senators declined to adjourn proceedings to allow Deputy President Rigathi Gachagua to testify on Tuesday after he reportedly fell ill just minutes before he was to take the witness stand.
The DP had failed to show up to testify in the historic trial, almost throwing the proceedings into disarray as no one — including his lawyers - knew his whereabouts.
But Senior Counsel Paul Muite would later confirm to the Senate that Gachagua had been admitted to Karen Hospital with chest pains.
The revelation triggered a heated argument between counsels for Gachagua and those of the National Assembly over the implications of the DP’s failure to testify.
Gachagua’s team persuaded Senate Speaker Amason Kingi to suspend the hearing until he recovered and appeared to defend himself against the allegations on Tuesday.
However, the National Assembly argued the impeachment hearings were time-bound and there was no assurance the DP would recover by Tuesday.
Kingi would later rule the proceedings could only be suspended until Saturday when the 10-day timeline allowed by law would elapse.
He, however, said the adjournment decision would only be made by senators.
When the issue was put to a vote, the senators rejected the adjournment request.
Gachagua’s legal team opted to walk away, saying they could not make closing statements without instructions from the DP.
Muite cited article 145(6) (b) of the constitution that provides for the right to a fair hearing and rule 11 of the Senate standing orders (House Rules) to allow the Senate to accord the DP another opportunity to be heard.
“I humbly request that the House gives us a couple of days ahead up to Tuesday. We should know then when the DP can come before the House to defend himself,” Muite said.
However, the National Assembly’s legal team argued that as much as they sympathised with the DP, the impeachment process has set constitutional timelines that must be adhered to.
“We would also want to be cognizant [of the fact] that we are dealing with a constitutional moment. We are dealing with a matter whose timeline is provided for in the constitution,” lawyer Eric Gumbo said.
Gumbo said the law provides for the DP to appear in person, with a legal representative or in person and with legal representation.
He said the DP had robustly participated in the hearing by filing all his responses and witnessing the cross-examination of the National Assembly.
“Up to this time, the DP and his team have had an opportunity to present their case. If there is any prejudice, that prejudice would be on us,” he said.
He added that matters of health were beyond human control and there was no assurance that the DP would have recovered by Tuesday.
“Matters of health cannot be given timelines. There cannot be certainty that if they are given one week or two weeks, then we will be able to proceed on that day,” he said.
Gachagua, who had been in the chamber since morning, broke for lunch at 1.15pm when the House adjourned.
At around 2pm, his vehicles were still in the Senate parking lot.
However, at around 2.20pm, about eight minutes before the resumption of the afternoon session, the motorcade – a chase car and five other high-end cars – left the Parliament precincts.
The motorcade joined Harambee Avenue before taking a turn to Uhuru Highway. In the chamber, Speaker Kingi had taken his position, senators were seated and the defence and National Assembly lawyers had taken their positions ready to hear the DP.
For about 20 minutes, there were no proceedings.
The DP had not taken the stand and he was nowhere, neither in the debating chamber nor the gallery.
The House was at a standstill. With the situation appearing inordinate, Kakamega Senator Boni Khalwale rose and sought to know from the Speaker whether the business had been halted.
“When we stand down business in this House, they normally arise from communication from the chair that from this time, we are suspending the proceedings,” Khalwale said.
“You have not done this and we are seated in the chamber. The mace is in place. We do not know whether we want this to be the new normal. We do not know how long we are going to wait and time is running out.”
In response, the Speaker indicated he had already invited Gachagua’s lead counsel, Muite, to usher in the DP to the witness stand.
However, Muite indicated he could not get hold of the Deputy President, who is the sole witness in the case.
“We are anxiously waiting for the DP. My colleagues can stand in for me as I make inquiries where he is held up,” Muite said.
But Kingi maintained that the clock was ticking for Gachagua and there would be no extension.
“Honourable Senators, at the rise of the House at 1.15pm, I made it clear that upon resumption the Deputy President was going to take the stand. We came in here, I communicated the programme for the afternoon,” Kingi said.
“I said we are going to execute it with military precision, owing to the fact that we have to conclude business today. Senior Counsel Paul Muite indicated that he cannot get hold of his client. That is not the concern of this House. Time is running.”
It was at this point that Muite sought time to look for his client. Moments later, he took the stand and informed the lawmakers Gachagua had been taken ill.
“Apologies and regrets that the Deputy President is not here and for the inconveniences and delays caused to the Speaker and the senators,”Muite said.
“The position is that during that period that we went as I tried to find out why he's not here, the sad reality is that the DP has been taken ill and is in hospital."
Muite requested to be allowed until 5pm to bring a report about his client's status.
The revelations threw the House into disarray, with the Speaker forced to seek the opinion of the counsels on the way forward.
However, Kingi asked Muite to propose a way forward. Senior Counsel James Orengo also demanded that Muite give a way forward.
“Reading standing orders, it would be useful to this House if SC Muite could probably give us a way forward in terms of the time limitations that the Senate has. We don’t want someone to say the DP was not given an opportunity to be heard,” Orengo said.
Muite responded:
"My proposal is that you give me the rest of the day to have an assessment of the DP’s situation and come back by 5pm after seeing him and speaking to the doctor.”
After consultation, Kingi halted the proceedings – from 3.30pm to 5pm – to give the DP’s team enough time to produce him. “We will suspend this sitting and resume at exactly 5pm. We expect the DP to take the witness stand then.
This is a time-bound process. It is so ordered,” he directed. Later, Muite said Gachagua had been admitted to Karen Hospital after he suffered chest pains. "The sad reality is that the DP has been taken ill and is currently in hospital.
That is the sad reality," Muite said. Giving a report on the DP’s progress to the Senate, Muite said Gachagua was suffering from intense chest pains.
"I have contacted the doctors who are attending to DP Gachagua and I was informed that he is currently suffering intense chest pains," Muite said.