Witness: I got Tunoi accuser's affidavit from Chief Justice Willy Mutunga

Judiciary Ombudsman Kennedy Bidali at anniversary towers to give his testimony during the hearing of Tunoi's bribery claims. (PHOTO: BEVERLYNE MUSILI/ STANDARD)

The tribunal investigating Sh200 million bribery allegations against Supreme Court judge Philip Tunoi yesterday heard that Chief Justice Willy Mutunga transmitted Geoffrey Kiplagat’s affidavit.

Judiciary’s Ombudsman Kennedy Bidali disclosed that Mutunga orally informed him about the affidavit last November and later sent him the dossier with instructions to investigate the matter.

He, however, told the tribunal that he did not know where the CJ got it from and at the same time never questioned the reason it was given one year after Kiplagat swore it.

It also emerged that a clerk who was involved in researching on the case has agreed to testify, allegedly indicating that Kiplagat had actually visited the judge in the chambers under a tag that he was his farmhand.

Bidali told the tribunal that he had managed to convince Shem Odek to tender his testimony on May 27, 2016, but the new revelation raised a storm as judge Tunoi’s lawyer Fred Ngatia objected to having the new man brought on board.

This was on account that Odek never appeared before the Judicial Service Commission (JSC) special committee and he had not made any statements from the time the issue started.

Ngatia argued that Bidali was on a hunt for more people in order to ‘pin’ the judge, adding that if Odek was made a witness, then the tribunal would be investigating matters other than what was before JSC.

Justice Philip Tunoi (left) and his lawyer Fred Ngatia during a tribunal hearing at Anniversary Towers in Nairobi yesterday. (PHOTO: BEVERLYNE MUSILI/ STANDARD)

A report tabled by Bidali allegedly emanating from the National Intelligence Service (NIS) caused a heated argument after it emerged that it was handwritten, with no signature, letterhead and no date.

JSC had used the report to confirm interaction between the senior judge and Kiplagat but lawyer Ngatia, terming it as a bluff, demanded that the intelligence body should appear to confirm its authenticity.

Questioning by lead lawyer Paul Nyamodi: Thank you for making time to come to this tribunal. Tell this tribunal what you do, where you do it and how you do it.

Bidali: My name is Kennedy Agufa Bidali and I currently work at the Judiciary as the head of Ombudsperson’s office as a portfolio resident at the office of the Chief justice. I am also by designation a chief magistrate currently attached to the anti-corruption court at Milimani courts.

Nyamodi: What do you do as the Ombudsperson?

Bidali: We process complaints by the public against serving judicial officers or by fellow judicial officers or employees of the Judiciary against the employer, the Judiciary. And we just don’t receive complaints, we also receive compliments. We advise on what policy directions ought to be taken based on the complaints and information we receive.

Nyamodi: In your capacity, do you have procedures of receiving complaints?

Bidali: We don’t have procedures. We have principles that guide our day-to-day operations. If I can talk about them, they are the principles of informality, confidentiality, impartiality. So we avoid any technical procedures. In our view, it will act as hindrance in filing a complaint.

Nyamodi: In respect to the matter that is before the tribunal, did you receive the complaint?

Bidali: Yes, I confirm we received this complaint.

Nyamodi: Do you recall the date you got this complaint?

Bidali: Chair, this was an informal complaint forwarded to me and the date it was first brought to my attention was on or about   November 18 or 19, last year.

Nyamodi: 18th or 19th November, 2015?

Bidali: Yes.

Nyamodi: All right, would you care to tell this tribunal who gave you this complaint?

Bidali: The complaint was brought to my attention during one of my briefings with the Chief Justice. We have regular briefings and the Chief Justice did inform me that he would be forwarding a complaint touching on a judge of the Supreme Court and I needed to process it and investigate it further.

Tribunal Chair Sharad Rao interjects:  It means that the Chief Justice was the first to receive the complaint?

Bidali: Yes chair. What I can confirm is I received the information from the Chief Justice.

Tunoi’s lawyer Fred Ngatia interjects: Mr Chair, with your permission sir, the witness did not say, I repeat, the witness did not say the complaint first went to the Chief Justice. He only said, I received the complaint from the Chief Justice. So he is not saying that he CJ received it from any other person. He only got it from the Chief justice. Where the Chief Justice got it from is only he who can tell us.

Rao: I think it’s important to go step by step.

Ngatia: And that is an important sequence whether he knows where he got it, he got it from the Chief Justice. The Chief Justice got it from any other person; he could have originated it for all I know.

Tribunal deputy chair Judy Guserwa: The witness is here, Mr Ngatia. He can clarify before we go any further. Can the witness clarify how he got this complaint?

Bidali: I received the information from the Chief Justice. I was informed orally about it and the following day he did send one of his confidential messengers to my office by the name Martin, who delivered it in an envelope and I could tell from the handwriting that it was directly from the Chief Justice.

Nyamodi: Did you ask the CJ where he got it?

Bidali: No, I did not ask the Chief Justice where he got it.

Rao: So you had no idea where he got it?

Nyamodi: No, I do not have any idea.

Commissioner Abdullahi Hussein:  When you say you received it orally, did you receive it with anyone else?

Bidali: I believe I was in the Chief Justice’s office, I can’t recall, I believe I was alone, yes.

Ngatia: We should make a distinction between a complaint and an affidavit. The two words are being used interchangeably but they do not mean the same.

Commissioner James Kaberere: This was a mere affidavit, not addressed to anybody. How does that become a complaint? Because you just have an affidavit not really addressing the issue to the Judiciary.

Bidali:  That’s true, generally the complaints are addressed either to the JSC or to the Chief Justice or to the registrar or my office. This particular one was an affidavit deponed by Geoffrey Kiplagat and, the affidavit was not addressed to anybody. He was deponing on facts, which he said were within his knowledge.

Nyamodi: Perhaps before going to the next issue, you can enumerate those issues that arose from the affidavit sworn by Geoffrey Kiplagat on November 22, 2014.

Bidali: Yes chair. From the Judiciary’s perspective, of course from the first issue, there was undue influence exacted upon a member of the Judiciary in determination of a petition and of course the second issue we did not take lightly was the fact the deponent had expressed fear on his life. So we took that as a complaint and we started the normal processes.

Nyamodi: Did you ever take issue with the Chief Justice as to why there was this big lapse between the time the affidavit is sworn and the time it’s given to you.

Bidali: I did enquire and the Chief Justice said he had just received the complaint. The manner in which he received it he did not disclose to me.

Nyamodi: Now, when he gave you the complaint, or rather the affidavit, did he give you instructions on how to deal with it?

Bidali: Yes, he gave me instructions to deal and investigate the matter in the normal manner.

Nyamodi: Did you give the complaint a ticket number?

Bidali: No, this particular one was an exception and it was because in the affidavit, there were averments expressing fear of life and I formed the opinion it ought to be handled with a lot of sensitivity in the first instance and I restricted the number of people who knew about it.

Nyamodi: Did you record your receipt of the complaint or affidavit at all?

Bidali: No, I did not at our automated system.

Nyamodi: No record of it at the automated system?

Bidali: No.

Nyamodi: What does the affidavit say in your own words?

Bidali: By looking at the affidavit narrowing down on the issues, I formed the opinion that, after verifying and cross-checking the averments therein that this was a case of a whistleblower coming forward and exposing in his view what he considers is misconduct on the part of the judicial officer, specifically Justice Tunoi. And  of course from the affidavit, I could also tell that there was a disagreement between the parties.

Nyamodi: I would like you to tell this tribunal how you handled the matter.

Guserwa:  Just for clarification, you talked about the affidavit and the judge being mentioned. Were there other people who were mentioned?

Bidali: Yes it had other people but it was not clear. It talked about two women.

Guserwa: So you proceeded with those who were cited?

Bidali: Yes, I proceeded with the matter.

Ngatia: Let’s not overplay this fear of life. Kiplagat was living in Eldoret before this gentleman went there for one year without any security, not even a watchman. So this overplaying security over his life has gone on for far too long it has got to be now downplayed. Kiplagat told us he was living in peace in Eldoret for over one year.