Kiplagat taken to task over JJustice Philip Tunoi's Sh200m bribery claim

A tribunal yesterday heard how Justice Philip Tunoi allegedly received a Sh200 million bribe in Nairobi.

Geoffrey Kiplagat, the Supreme Court judge’s accuser, yesterday took the stand for a second time for a one-and-a-half hour grilling by Tunoi’s lawyer Fred Ngatia,who sought to demonstrate contradictions in the witness’s account.

Mr Kiplagat stuck to his earlier written testimony, describing to the Sharad Rao-led tribunal how a briefcase with the cash was handed to the judge who sat in the back seat of a vehicle at a petrol station in Westlands, Nairobi.

Geoffrey Kiplagat during the hearing of Justice Philip Tunoi's tribunal at Anniversary Towers, Nairobi, yesterday. He took the stand for a second time for a one-and-a-half hour grilling by Tunoi’s lawyer, Fred Ngatia,who sought to demonstrate contradictions in the witness’s account. (PHOTO: ELVIS OGINA/STANDARD)

Mr Ngatia pressed the witness to explain how the briefcase, measuring approximately 20cm width by 75cm in length and 30cm in height, could be passed to a person in the back seat.

Kiplagat, who said he sat in the passenger seat, explained that the driver, lawyer Katwa Kigen, bent and the judge took it through the open space between the two front seats.

The witness told of mobile phone calls and numerous meetings, some of which the judge failed to attend, that preceded the alleged bribery that he claims was meant to influence the outcome of an election petition in favour of Nairobi Governor Evans Kidero.

Tunoi’s lawyer at one point asked Kiplagat whether he had tried to record a statement with the Directorate of Criminal Investigations in a bid to extort money from Kidero. He denied.

Kiplagat was also questioned on the coincidence of his approaching two lawyers, one of who was acting for the petitioner challenging the election of Kidero and the other the Judicial Service Commission in another case against Tunoi.

Lawyer Paul Muite, who was acting for Kabete MP Ferdinand Waititu against Kidero, referred Kiplagat to Issa Mansur, who recorded his affidavit. Muite and Mansur represented JSC in a suit against Tunoi.

It also emerged that Kiplagat did not know how his affidavit leaked from Mansur to Chief Justice Willy Mutunga, who in turn gave it to the Judiciary Ombudsman Kennedy Bidali. The tribunal heard that Bidali and Kiplagat met in Eldoret, at a Chief Magistrate’s Chamber. He testified that he never told anyone to hand the affidavit to the Judiciary.

Kiplagat also failed to ascertain his claim that the judge had bought 300 acres of land using the alleged kickback.

Ngatia: From paragraph 8-42, there are nine events I would want you to deal with. These paragraphs deal with what you refer yourself as the linkman between the judge and Kidero’s people, correct?

Kiplagat: Correct.

Ngatia: You also refer yourself to as a well-connected journalist, that what your engagement is is to bring the two groups together?

Kiplagat: That is true.

Ngatia: Right from the word go, early May, you called the judge and requested to visit him in Eldoret. Do you remember that testimony? And the judge declined.

Kiplagat: He said he would advise.

Ngatia: Did you or did you not visit him?

Kiplagat: No, I didn’t.

Ngatia: During the first call to the judge, you did not tell him why you wanted to see him?

Kiplagat: I said I wanted to see him on behalf of a friend. He said he would call when he comes back to Nairobi.

Ngatia: For the third time, did you go to Eldoret?

Kiplagat: I did not.

Ngatia: So you did not meet him in Eldoret?

Kiplagat: That is true.

Ngatia: During your call, did you tell the judge that Kidero wanted help? Yes or no?

Kiplagat: For the first time, I told him friends. I didn’t tell him it was Kidero.

Ngatia: We go to May 21, 2014, you again called the judge and you explained the nature of assistance.

Kiplagat: Yeah.

Ngatia: This nature of assistance consisted of what?

Kiplagat: It was not elaborate that the people of Kidero wanted him to assist in determining the case.

Ngatia: Anyone who witnessed the conversation?

Kiplagat: No, I don’t remember.

Ngatia: The judge denies ever having the conversation and thus in this tribunal we will look for evidence to corroborate your story.

Ngatia: Incident number three, you set a meeting at Kengeles Lavington.

Kiplagat: Right.

Ngatia: You waited for the judge between 4pm up to 6pm, the judge did not come.

Kiplagat: He did not.

Ngatia: Incident number four, according to you, there is a gentleman known as Ernest Keitany, he is the one who told you to visit the judge at the Supreme Court.

Kiplagat: Right.

Ngatia: Did you visit the judge?

Kiplagat: Yes, I did.

Ngatia: In the judge’s chamber there are secretaries.

Kiplagat: Yeah they are, two of them.

Ngatia: Two of them. They are the only ones to confirm that you went to the judge, true or not true?

Kiplagat:  True, as well as the telephone conversations.

Ngatia: We are talking about a visit.

Kiplagat: A visit preceded by calls.

Ngatia: Incident number five. The Consolata Shrine mystery. You went to Consolata but the judge did not meet you there.

Kiplagat: That’s correct.

Ngatia: According to you, you attended mass between 8am to 11:30 am.

Kiplagat: It was the second mass, I remember.

Ngatia: Needless to say that the tribunal will attend my church and see if there is a mass that takes two hours.

Ngatia: Incident number six, we can conclude that the judge never attended Maasai Mara true or not.

Kiplagat: He was not for attending. When we spoke he was jittery about the type of gathering. I was not with him, he told me he would not.

Ngatia: When the case was determined, the judge declined to attend another meeting you had arranged, correct?

Kiplagat: That is correct.

Ngatia: Second time in Eldoret judge did not attend.

Kiplagat: Yes he did not.

Ngatia: Can you confirm that the judge did not meet Kidero.

Kiplagat: Up to the point of discussion he did not, up to that point not yet.

Ngatia: You can confirm that the judge did not meet Kidero’s men, Mike Njeru and Osogo.

Kiplagat: They never met, they spoke.

Ngatia: According to your affidavit, the only place you saw the judge was at the Supreme Court building, true or not true?

Kiplagat: True, in his chambers.

Ngatia: If it’s at the Supreme Court it would be verified, we expect evidence on that.

Ngatia: We go to episode number two, that you received a telephone call from Katwa Kigen.

KIplagat: I did.

Ngatia: Again the only person who can confirm is Katwa Kigen.

Kiplagat: Katwa Kigen and the records you are requesting.

(Rao interjects) I did not get the answer.

Katwa and the records on mobile phone communication.

Ngatia: Katwa calls you and you meet in a restaurant in Lornho House.

Kiplagat: True.

Ngatia: It’s a restaurant at the ground floor.

Kiplagat: True.

Ngatia: Tables are fairly close to each other.

Rao: Which restaurant?

Kiplagat: The one you can peer the streets.

Rao: Is it Pasara?

Kiplagat: I'm not conversant with the street but it’s there anyway.

Ngatia: In this episode two, Katwa and another gentleman Kiprop went to the restaurant around lunch hour.

Kiplagat: Yeah, I came earlier and waited when Katwa called me.

Ngatia: They ordered a meal and they started talking about USD 2 million.

Kiplagat: That is right.

Ngatia: And they are talking about this in a very busy restaurant?

Kiplagat: (pauses for a while ) I don’t know how busy it is but...)

Ngatia: Every table was occupied.

Kiplagat: We were talking to each other, not addressing lunch goers.

Ngatia: But they can over hear you.

Kiplagat: But when you are endeavouring to talk on your own you whisper.

Ngatia: They talk about the 2 million but unlike episode one, you are not the link man, you are now an observer, are you not?

Kiplagat: Why I was called definitely was because of my involvement earlier.

Ngatia: Let me demonstrate to you that you are now an observer; Kiprop was now the Governor’s man correct?

Kiplagat: Yeah he was, he was a stranger, and anyway he came there.

Ngatia: He was now the one to represent the governor.

Kiplagat: I later came to learn he was representing the governor.

Ngatia: Katwa only calls you to be an observer, there is no role that you were to take, were you to take some money?

Kiplagat: I was to take them to some office in Waiyaki Way, Mike Njeru’s office.

Ngatia: You were to show them Mike’s office for what purpose?

Kiplagat: For the meeting between the judge and the governor

Ngatia: The next meeting you met at a petrol station.

Kiplagat: We did.

Ngatia: What time was it

Kiplagat: It was around 8pm.

Ngatia: Describe the petrol station.

Kiplagat: It's called Petro, along Waiyaki Way, on the left and its near Mike’s office.

Ngatia: Did you call each other?

Kiplagat: The express instruction were that I...

Ngatia: Answer the question.

Kiplagat: We did not call each other.

Ngatia: If that happened we need other people to testify as the place you met was public, it must have been seen by other people, an attendant, a supervisor or is it you alone who saw the exchange of bags.

Kiplagat: They can volunteer.

Ngatia: I think I'm demonstrating that this is fiction. You were able to memorise Mr Kiprop’s registration number at that Petro station.

Kiplagat: We followed it, I took the number, I read the number.

Ngatia: Before we get to how the money was exchanged, how big was the bag?

Kiplagat: It’s a normal, size briefcase.

(Shown a briefcase)

But slightly longer, bigger (measured by the lawyer)

Width is 20 cm, length 75 cm, height 35 cm approximately

Ngatia: Now that we have captured the bag, it’s brought by Kiprop to Katwa in his vehicle?

Kiplagat: Yes.

Ngatia: He bent.

Kiplagat: He bent, side, you see if you say which side, you would be lying so he bent. He just bent.

Ngatia: Does Katwa leave the vehicle?

Kiplagat: No no, the bag is actually handed to the judge at the back seat.

Ngatia: And you are sitting at the front?

Kiplagat: At the front, yes.

Ngatia: The front is not available to keep this bag.

Kiplagat: Yes.

Ngatia: How is it given to the person at the back?

Kiplagat: Through the window, ordinarily it was handed over, there is a space between the two seats at the front.

Ngatia: And you still remember the car Katwa was driving?

Kiplagat: It was a Mercedes.

Ngatia: This luggage goes to the back seat, the content of the bag you don’t know.

Kiplagat: He actually opened it and I... I was not allowed to peep so much but he opened it.