Senior Counsel Paul Muite during Day 2 of the impeachment hearing at the Senate on Thursday /ENOS TECHE
There was a major tussle during the impeachment proceedings at the Senate over the fate of three explosive affidavits of witnesses who did not physically appear to testify in the impeached DP Rigathi Gachagua ouster case.

The three documents include that of businessman Peterson Njomo who alleged that the Deputy President used him as a proxy to acquire Olive Gardens Hotel. The director of TM Civil Engineering Ltd had alleged that he paid Sh412 million for the property in a secret informal arrangement with DP Rigathi Gachagua.

He had been listed to appear as a witness for and on behalf of the National Assembly but did not show up, prompting a revolt from among Gachagua’s lawyers.

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Affidavits by Nairobi Governor Johnson Sakaja and that of Secretary to the Cabinet Mercy Wanjau were also contested if admissible as part of National Assembly evidence in the motion by Kibwezi West MP Mwengi Mutuse.

Gachagua’s lawyer Paul Muite raised the concerns and pushed for the three dossiers to be expunged from the records of the Senate.

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“The affidavits have material injurious to the Deputy President. We were looking forward to cross-examining Governor Sakaja to bring out the truth to assist the Senate in this investigation,” Muite said.

He raised concerns about the admissibility of the affidavits whose owners were not available for cross-examination to test the veracity of their claims.

“If he (Sakaja) is not coming, the affidavit should be expunged together with that of Peterson Njomo and Mercy Wanjau who are not being called here to be cross-examined,” Muite said.

The counsel argued that it was not fair to file affidavits containing information or allegations injurious to a party and ask the affidavit to remain as a part of the record without calling them for cross examination.

Senate Speaker Amason Kingi in his ruling asked members of the august House to mull the way forward for the contested affidavits whose deponents did not appear. He asked the members to take note of the concerns by Gachagua’s lead counsel.

“The question as you retire is to look at the probative value of those affidavits. Your (Muite) point is valid, the senators have noted,” Kingi said.

National Assembly’s lawyer Eric Gumbo argued that there was no new material presented to the Senate which was not part of the National Assembly submissions, save for the Njomo affidavit.

“The affidavits form part of the material from the National Assembly. There is no new material that was presented to this House after the National Assembly submitted its documents,” he said.

The National Assembly had only called Mutuse, former Kemsa CEO Andrew Mulwa and EACC deputy CEO Abdi Mohamed by the time it closed its case.

Muite, when accosted for inferring that the Senate would be unfair to his client, said he had faith in senators and was only carrying out instructions of his client.

The events played out shortly before news of Gachagua being taken ill reached the House.