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Team sets ground for battle that threatens to bring down Supreme Court

By Kamau Muthoni and Nzau Musau | February 6th 2016
Chief Justice Willy MutungaChief Registrar Ann Amadi with other Judicial Service Commision Members adresing members of the press on Friday 5/2/2016.PHOTO.FIDELIS KABUNYI

The Judicial Service Commission (JSC) yesterday set the ground for a vicious battle over the survival of the Supreme Court.

The commission, chaired by Chief Justice Willy Mutunga, who is also the President of the Supreme Court, cleared the way for suspension and investigation of Justice Philip Tunoi over a multi-million shilling bribery claim.

The Supreme Court Judge has insisted that he was innocent and declared that he is ready face his accuser.

“Justice Tunoi has learnt of the recommendation made by the JSC and reiterates his innocence against the false accusations that have been made against him. The war has just begun. The accuser was questioned behind our backs. He will now be cross-examined in the presence of the judge and it will be in the open,” Tunoi’s lawyer Fred Ngatia told The Standard on Saturday.

Tunoi is Kenya’s senior-most judge and arguably carries the hopes, aspirations and the reputation of not only the Supreme Court but the entire Judiciary.

The bribery allegations against him are in relation to a case in which the entire bench of the Supreme Court, including Justice Mutunga, sat and ruled.

The court is already reeling under a myriad of controversies among them contested retirement of two judges; issuance of threats and ultimatums to their employer – the JSC, and a petition for removal of three members.

In the unanimous decision yesterday, the JSC agreed with yet another unanimous decision of its own committee chaired by Public Service Commission chair Margaret Kobia which recommended a tribunal for the embattled judge.

“The commission is satisfied that from the totality of the material and information presented before it there was inappropriate interaction and communication between Tunoi and agents of a litigant in a matter pending before the Supreme Court,” CJ Mutunga said in a public statement yesterday.

Major interest

On bribery allegations, JSC recommended further probe hence the decision to ask the President to set up a tribunal.

“As to whether or not there is material to suggest that a bribe was given to Tunoi on August 27th, 2014 in order to influence the decision to favor the petitioner, the commission is satisfied that this is an issue that requires further investigation by the said tribunal,” the CJ said.

The JSC verdict means that Nairobi Governor Evans Kidero, the giver of the alleged Sh200 million bribe, will also have a major interest in the inquest.

If the judge is found guilty, the decision to uphold Dr Kidero’s election could be moot or open to challenge. By extension, the character and reputation of the other judges involved in the decision could also be called to question.

“The fate of the entire Supreme Court now squarely rests with Tunoi. He could not have swayed the decision on this matter one way or the other on his own. The implication of this is a matter of common sense,” Law Society of Kenya (LSK) CEO Apollo Mboya said.

The LSK’s representative at the JSC Tom Ojienda, who was Kidero’s lawyer in the controversial election petition, supported the commission’s decision.

Immediately after the JSC read the verdict, Kidero said: “We will wait for the full report written by the committee before responding fully. We hear it alleges that Tunoi’s accuser was my agent and yet I have never, never seen, met or spoken to the man. I’m innocent.”

The 72-year-old Judge, according to JSC, must face a tribunal as required by law for further probe and action, because after eight days of hearings and discussions and calling seven witnesses, the commission found the conduct by the judge to be inappropriate.

“This in the opinion of the commission amounts to gross misconduct and misbehaviour, sufficient to warrant the establishment of a tribunal to further investigate the matter,” the commission found.

President Kenyatta is now expected to appoint a tribunal within 14 days where the petitioner, Geoffrey Kiplagat, and the other individuals mentioned in his affidavit will be cross-examined by lawyers from all parties to establish the truth.

The judge will be faced with two realities, either removal from the Judiciary or be found blameless.

“Arising from the foregoing, the commission is satisfied that a prima facie case of gross misconduct and misbehaviour has been disclosed against the Justice Phillip K Tunoi,” the JSC statement read.

The embattled judge is also fighting to remain in the Judiciary until the age of 74 while his employer wants him out having attained the retirement age of 70 as set in the 2010 Constitution.

Under the Constitution, judicial misconduct is acknowledged and it encompasses breach of code of conduct prescribed by Parliament, incompetence, or gross misconduct or misbehaviour.

According to Public Officer Ethics Act and the Judicial Service Act 2011, judges have a distinctly different process of being dealt with for alleged misconduct – by setting up of a tribunal by the President at the behest of the JSC after an in-house inquiry.


Removal of a judge can only be addressed through JSC acting on its own motion or on the petition of any person. The commission is obligated to send the petition to the President who must, within 14 days, set a Tribunal.

The interrogation will also include questioning Kidero and will be weighed against what will be said by the others who are alleged to have participated in the alleged scam.

The affidavit by Mr Kiplagat was signed in 2014 but was availed to the Judiciary in November last year.

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