Lawyers say JSC decision confirms rot in Judiciary

Lawyers welcomed the Judicial Service Commission (JSC) recommendation for a tribunal to investigate bribery claims against Justice Philip Tunoi.

They said this was a confirmation of the rot in the Judiciary.

The lawyers added that the JSC had opened a legal pandora’s box that could see litigants who lost in the Supreme Court demand for a review of decisions on the cases involving them.

They said the fact that the commission had found grounds for misconduct in the Tunoi probe provided reasons for Nairobi Governor Evans Kidero’s lawyer Tom Ojienda to recuse himself from the JSC.

Former Law Society of Kenya (LSK) CEO Apollo Mboya (pictured) and lawyer Ahmednassir Abdulahi said the commission had no option but to form a tribunal to investigate the Supreme Court Judge.

They said the fact that Tunoi had inappropriate interaction with Dr Kidero’s litigants makes evidence linking him to the matter “overwhelming and saturated.”

“I think it was inevitable because his interaction with the governor’s representatives was so obvious... evidence linking the accused to the bribery claims is overwhelming and saturated,” said Mr Ahmednassir.

Mr Mboya said the tribunal was best-placed to investigate whether the judge indeed received a bribe from Kidero as has been claimed.

“The fact that there was contact between Tunoi and Kidero’s representatives complicates the matter,” he added.

Ahmednassir advised the judge to resign to avoid further damage to his reputation.

Tunoi is next Friday expected to appear before the Court of Appeal in a case over his retirement age case. Ahmednassir explained that should the court determine that he should have retired at the age of 70 and not 74 as he has petitioned, then the tribunal will be superfluous.

“If the court determines he should have retired at 70 then the tribunal will not go ahead. If it comes to an end, then the Director of Public Prosecution would get into the case because there is some element of subversion of justice which is a felony,” he added.

High Court advocate Edward Kihanga said the public generally believes that corruption is pervasive in the Judiciary.

“I am not surprised that JSC has come to that conclusion because it shows the level of corruption at the Judiciary. The decision by the JSC has put into question the credibility of other gubernatorial petitions judgements that have been delivered by the bench,” said Mr Kihanga.

He added that Prof Ojienda, who is the LSK representative to the JSC, must recuse himself.

Kihanga  explained that if Tunoi wins the retirement age case he will continue to serve Kenyans despite the bribery accusations.

Another Lawyer Thomas Kuria said  it is not easy to suspend a Senior Judge like Tunoi and the bribery claims may not stand at the tribunal stage.

He added that the tribunal will only just look at the evidence tabled and determine whether Tunoi could have been bribed.

Kuria believes that the judge predicament was engineered by politicians with an eye on the next General Election.

He added that Tunoi’s issue is being influenced by Kidero’a opponents.

These machinations may be revealed at the tribunal stage. “There is a problem of credibility as it is evidence from that judgement, “said Kuria.

Yesterday lawyer Kanyange Bemih said he believed  due process was followed by the JSC and the parties interrogated.

“The judge cannot just be fired .... judicial process has to follow,” said Bemih.