The spy agency has disowned a handwritten report that linked Judge Philip Tunoi to a Sh200 million bribery allegation.
The National Intelligence Service (NIS), in its response to the tribunal’s inquiry on the authenticity of the five-page report that was produced by Judiciary’s ombudsman Kennedy Bidali, said the handwritten document did not emanate from its officers.
The Judicial Service Commission (JSC) relied on the disputed report to recommend to President Uhuru Kenyatta to form a tribunal on account that judge Tunoi’s behaviour was wanting.
Mr Bidali explained to the tribunal that he submitted the handwritten document on account that he would later get a typed one as the NIS director was out of the country when it was being crafted. However, he said he never received any formal report from the agency.
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It also emerged that another report drafted by Bidali, which he gave to Chief Justice Willy Mutunga after concluding his investigations, bore a date he had not inserted.
He denied writing a date after his signature on the report when he was asked why JSC indicated that it got Geoffrey Kiplagat’s affidavit three days before he appeared before them.
Bidali appeared before JSC on January 31, this year, but the same commission said in its final finding it got the affidavit on January 27.
It also emerged that Bidali had no documents showing that Judge Tunoi bought land using the Sh200 million he allegedly received from Nairobi Governor Evans Kidero as a bribe.
Tunoi’s lawyer Fred Ngatia said his client bought 600 acres of land in 1976 when he was in private practice, and had a title deed as proof.
Assisting counsel Paul Nyamodi: After the tribunal adjourned, the tribunal wrote to the director general seeking to declassify the response and I am happy to report that on June 2, the director declassified his response of May 30, 2016, and Mr Chairman in the response of May 30, 2016, the National Intelligence Service stated that the undated and unsigned document...
Tribunal chairman Sharad Rao: I would rather you produce that letter.
Nyamodi: All right. The letter is dated...
Rao: The response by the director is in writing?
Nyamodi: Yes. (Reading response by NIS) Reference made to you in respect to the letter dated May 23. We advice that: 1. The undated and unsigned document did not originate from the service. 2. The letter referenced NIS /DG/1 volume 3 in (47) dated February 3,2016 was authored by the service. Then it further states, we further advise that our said letter of May 3, 2016, was only intended to provide basis for further investigations by Judicial Service Commission and was never intended to be used in the present or contemplated manner as it is a classified document that touches on the service’s operations and gathering intelligence information and the disclosure which is prohibited by section 9(1) as read with section 3(3) of the NIS Act.
In the circumstances we object to the production of that letter as evidence before the tribunal. And it is signed on behalf of director general of NIS.
Ngatia: The document is at page 22. If sir, you could turn to page 22, this is the document that was the centre of our challenge and which now NIS say did not emanate from them. That was the document; number one was tendered before the JSC special committee by the witness and it was tendered on the basis that it emanated from NIS, and a as matter of fact the word used is a preliminary report from NIS. On the basis it was a preliminary report from NIS, it was used by JSC, it formed an integral part of their decision that a case warranting an enquiry had been made.
So I will be having several applications on the basis that today NIS has said this is not their report. My first application is this. It should be expunged from your record but expunging it from your record is not enough because it actually cuts across the JSC proceedings. As I cross-examine the witness, I will be pointing to where this document found its way in the hearing and the decision so that at the appropriate time you will deliberate.
Rao: If we expunge it now, you will have no basis to cross-examine the witness.
Ngatia: Mr Bidali, I have quite a few questions for you but before I get to know each other. Is my understanding that you are a chief magistrate?
Bidali: That’s correct.
Ngatia: The Judiciary deploys you?
Bidali: That is correct.
Ngatia: At the commercial court?
Bidali: Correction, it’s not commercial court but Milimani court.
Ngatia: Routinely, you don’t sit in court as your colleagues, correct?
Bidali: Aaa, not on a full-time basis. On average I sit one week in a month.
Ngatia: One week in a month?
Ngatia: I asked around as late as yesterday when you were last seen in court. Could you tell us when you last had a court session at anti-corruption court number one. Can you remember?
Bidali: Aaa, should be three weeks ago on the date that I appeared here. I had a ruling to be delivered but it was mentioned by my colleague.
Ngatia: So three weeks ago is the last time you were in court?
Bidali: Yes, thereabout.
Ngatia: As a magistrate and a trained lawyer, there are certain things that should be inculcated in us... On the basis you have the requisite values and virtues, then it’s worth my while to engage you. Our engagement will be that we are both trained lawyers, isn’t it?
Ngatia: Judiciary is set out under chapter 10 of the constitution, you are aware of that, you are aware of that?
Ngatia: As a chief magistrate, you are also in the Constitution. Your station is in Article 171, a court subordinate to the High Court.
Bidali: Yes that’s the position.
Ngatia: As a magistrate, it is not one of your functions to investigate a judge of the superior courts.
Bidali: As a magistrate no.
Ngatia: It is not one of your functions.
Ngatia: In contradistinction, there is an independent institution in Article 248. If you could go to 248 (2) paragraph E for England, it sets out an independent commission. Can you read it out?
Bidali: Yes, the commissions are at E The Judicial Service Commission.
Ngatia: So we can proceed that JSC is a commission set out by the Constitution, is that correct?
Ngatia: Now JSC features in Article 171, it sits as an independent commission and at sub-article 2 because the persons are set out. And from that, you could see that JSC is not the Judiciary, is that correct?
Bidali: That is correct.
Ngatia: Before we go any further, have you ever been employed by JSC? Yes or no?
Bidali: I’m an employee, the appointment letter is by JSC. I am an employee of the Judiciary.
Ngatia: Can we start off again? We started off by telling me you are an employee of the Judiciary, is that correct?
Ngatia: I’m asking you a question, have you ever been employed by JSC, an independent commission, yes or no?
Bidali: I am an employee of the judiciary.
Ngatia: Because you know that JSC is an independent commission with its own secretariat.
Ngatia: We go to your role as the ombudsman because that is where the eye of the storm is. When were you appointed to this post?
Bidali: Aaa, the first appointment, I don’t have the letter of appointment. (Peruses his folder) yes chair, I don’t seem to have the letter of appointment to the office but it was sometime in 2012, 2011, September.
Ngatia: How were you appointed in this one?
Bidali: Aaa initially, I was aaa working as a Deputy Registrar at the office of the Chief Justice and while on that mandate, I was then given a memo from JSC appointing me as a the head of Ombudsman’s office.
Ngatia: Under the Chief Justice?
Bidali: Yes, it’s an office, a portfolio under the office of the Chief Justice.
Rao: Who appoints?
Bidali: The Chief Justice appointed as chair of JSC. Because the letterhead (stated) I was appointed aaa from the JSC.
Ngatia: How could you be appointed by JSC, then you are holding two public positions. You understand you could be an ideal candidate for another body that is not too far from us. Are you earning two salaries, one from JSC, another one from the Judiciary. It is important we get to that.
Bidali: No chair, I am earning one salary.
Ngatia: As a chief magistrate.
Ngatia: Okay, it is important, I don’t want you to get into problems.
Rao: Do you have extra allowance as an Ombudsman?
Bidali: No chair. You see when I was appointed as a chief magistrate, I was appointed as the DR but the salary is the same.
Ngatia: We continue on the basis that you were an employee of the Judiciary as a magistrate and an ombudsman working with the Chief Justice. You received an affidavit from the Hon Chief Justice?
Ngatia: When you received the affidavit you must have seen it had one-year lapse, is that correct?
Bidali: Yes, I noted that.
Ngatia: Did you ask from your boss why it took one year to hand in the affidavit?
Bidali: No, I did not ask.
Ngatia: Did he volunteer information that Bidali here I am that it was one year after it was sworn.
Bidali: No, he did not volunteer to explain the lapse of time.
Ngatia: Did the Chief Justice tell you where he got the affidavit?
Ngatia: Did you ask him?
Bidali: No I did not.
Ngatia: Am I right to say that it is not in the normal course of events for a CJ to have a sworn affidavit of a citizen, which is not in a court file, attached to a letter. Would that be normal course in that high office?
Bidali: Yes that would not be normal in that office. That office receives complaints...
Ngatia: I am dealing with an affidavit.
Bidali: Yes affidavits, I am aware it is not the only one.
Ngatia: To you it is normal for the Chief Justice to have an affidavit, which has no forwarding letter, no file. It’s quite okay for him to have an affidavit.
Bidali: As I said chair, I don’t know if there was a forwarding letter or a file. What I received was an affidavit.
Ngatia: So you now have the affidavit sworn by Geoffrey Kiplagat.
Ngatia: Mr Kiplagat was sitting exactly where you are and stated that he forgot about the affidavit until you went to Eldoret. Did he tell you he had forgotten about the affidavit?
Bidali: No he did not.
Ngatia: Now let let’s go to Article 168. Can I read it to you?
Ngatia: A judge can only be removed from office only by JSC acting on its own motion or on a petition by any person to the Judicial Service Commission. Let’s understand it and please let’s not add our own words. Removal of a judge is to be initiated only, by only it limits to the two alternatives, doesn’t it?
Ngatia: The two alternatives, alternative one JSC acting on its own motion. Let’s pose there and keep the Constitution aside. Is this motion against judge Tunoi initiated by JSC in its own motion, yes or not?
Bidali: Chair it’s difficult to answer that on yes or no basis and if given time I can explain that.