Admittedly, Deputy Chief Justice Nancy Baraza conceded a great deal of what took place at the Village Market. She admitted to have gone to mall, to have by passed the security desk and to have been followed by security guard Rebecca Kerubo who demanded that the DCJ’s handbag be searched.
There is no doubt that there was an altercation between the DCJ and Kerubo. From the CCTV it is clear the DCJ’s arm was outstretched outside the pharmacy whereas according to her, this incident took place inside the pharmacy.
This would corroborate Kerubo’s story that her nose was pinched. There is also the evidence of (Dr James) Wathigo and that of his assistant, (Benedict) Muhani, who both worked at the pharmacy.
Kerubo testified that the DCJ pinched her nose outside the pharmacy, and when she followed her into the pharmacy the DCJ placed her hand on her shoulder.
Indeed the DCJ testified that she did place her hand on her shoulder inside the pharmacy and also placed her hand over Kerubo’s mouth to stop her from shouting. The DCJ made no mention of the touching of Kerubo outside the pharmacy.
Kerubo had stated in her evidence that on January 1, 2012, when she first viewed the CCTV footage it was clear that her nose was pinched. However, on the other occasions the CCTV footage merely showed the DCJ’s hand being stretched towards her.
CCT tampered with
When the Tribunal viewed the CCTV, we observed that the DCJ turned around between the security desk and the Pharmacy, and then turned to proceed into the Pharmacy; she then came out, and Kerubo could be seen standing outside and looking into the Pharmacy.
The image then showed DCJ with her arm outstretched towards Kerubo, and then turning and going back to the Pharmacy.
Kerubo suggested that the films have been tampered with. However, that was never established. But it is our considered opinion that that is not absolutely necessary for our determination in these investigations.
The question for us to determine is why was the arm stretched? For Kerubo the arm was stretched to pinch her nose. As for the DCJ she merely confirmed that it was her stretching her hand, but she provided no explanation. Kerubo’s account of the incident was corroborated by Makhanu. We find Kerubo to be credible from the way she confidently and steadfastly gave her evidence and especially in cross-examination. In fact, she has been consistent in her statements since December 31, 2011. What she did not know she forthrightly admitted her lack of knowledge. She never contradicted herself.
On the other hand, we were not thus impressed by the evidence given by the DCJ. There were discrepancies in her evidence. For instance, she testified that after she entered the Belladonna Pharmacy, Kerubo followed her and used disrespectful language.
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