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ELECTION 2022

Philip Tunoi probe: Mobile data analysis fails to place key players at 'meeting point'

COUNTIES
By Kamau Muthoni | Jun 14th 2016 | 5 min read
Nairobi Governor Evans Kidero who is accused of bribing suspended Supreme Court Judge Philip Tunoi. (Photo: Wilberforce Okwiri/Standard)

A mobile phone data analysis presented before a tribunal investigating a Supreme Court judge failed to place key players at a petrol station where they had allegedly met.

The tribunal investigating suspended Supreme Court judge Phillip Tunoi Monday heard that on August 27,2014, the date journalist Geoffrey Kiplagat alleged that Nairobi Governor Evans Kidero gave Tunoi a Sh200 million bribe along Waiyaki Way, all those said to have facilitated the transaction were in different parts of the town.

The Sharad Rao-led tribunal had sought help from the Directorate of Criminal investigations, which sent an investigator to analyse mobile phones mentioned in Kiplagat’s affidavit. The National Intelligence Service (NIS) recently disowned a report which had been used by the Judicial Service Commission (JSC) to create a link between the judge and his accuser.

Inspector Monicah Githaiga told the tribunal that data records between 7pm and 9pm showed that lawyer Katwa Kigen was within St Alice House (formerly Courts House), which is adjacent to the Supreme Court and later Menelik Hospital in Kilimani.

In his affidavit, Kiplagat had claimed that Mr Kigen was driving Tunoi after they picked him in Kileleshwa and proceeded to Petro Petrol Station where the money was allegedly given.

The officer also revealed that businessman Kiprop Chirchir, the man alleged to have driven governor Evans Kidero to deliver the money, was in an estate within Kilimani between the hours in question and was later traced to Woodley.

Ms Githaiga said Kiplagat’s phone’s data retrieved from Safaricom traced him to Madaraka at National Housing Corporation houses whereas Dr Kidero was at North Muthaiga. Tunoi was traced to St Alice House and later in Kileleshwa.

However, the data showed that Kiplagat sent nine text messages between May and August and judge sent two text messages to him at the same time but it did not show the judge communicating to all the other parties mentioned in the case as had been alleged.

On the day Kiplagat claimed he had visited Tunoi’s office at the Supreme Court, mobile data record show the judge was near a hospital in Eldoret.

The data further showed Kiplagat never called John Osogo, the governor’s personal assistant, who was alleged to have approached the accuser for Kidero.

Excerpts of Githaiga cross examination by lead Counsel Paul Nyamodi (acting as the prosecutor).

Lawyer Paul Nyamodi: Paragraph 49 Mr Kiplagat there is allegation that Mr Kiplagat was collected by Katwa and the judge and thereafter that they went together to Petro Petro station along Waiyaki way where they met Kiprop Chirchir.

Githaiga: In this paragraph I have the location of Mr Katwa, Mr Kiprop and Mr Justice Tunoi in the following manner. Mr Katwa on August 27, 2014 at 19:31:48 hrs was at St Alice within CBD. Also he was within Menelik hospital at 21:08:48 hrs.

Rao interjects:  Where is Menelik?

Githaiga: Kilimani

Nyamodi: Off Ngong Road Mr Chairman.

Githaiga: August 27, 2-14 at 19:14:37 Mr Kiprop was within Dubatante Court within Kilimani and 21:38hrs was within Woodley estate.

Rao: This is the day they are meant to meet at the Petrol station?

Githaiga: Yes... the same day August 27, 2014 at 19:06:23 to 21:02:42hrs Mr Kiplagat was within Nairobi National Housing Corporation house Madaraka.

Justice Tunoi on August 27,2014 at 19:04:30hrs was within St Alice that is within CBD also he was within Kileleshwa at 21:11:00hrs.

Dr Kidero on August 27,2014 at 19:28:06hrs was within North Muthaiga estate.

Lawyer Fred Ngatia:  Paragraph 22 of Mr Kiplagat is an important paragraph as it arrives at an important narrative that he went to the Supreme Court building have you seen that? In 21 he says he went to Supreme Court building pursuant to a call by Earnest Keitanny. Were you able to ascertain a call from Earnest Keitanny on June 3, 2014 to Mr Kiplagat?

Githaiga: No, because it wasn’t captured by the system.

Ngatia: There was no such call you were able to capture.

Githaiga: Yes.

Ngatia: Were you able to ascertain Mr Kiplagat was at the Supreme Court building or otherwise?

Githaiga: I was not able because Mr Kiplagat’s location was not captured by the system.

Ngatia: How many text messages did Kiplagat send to the judge On May 21?

Githaiga: Three messages.

Ngatia: But the judge did not respond.

Githaiga: Correct.

Ngatia: How many sms did Kiplagat try to send to the judge?

Githaiga: Nine sms from Kiplagat to the judge and two messages from the judge to Kiplagat on June 26, 2014.

Ngatia: Do you know the content of the messages?

Githaiga: No I don’t.

Ngatia:  There are no corresponding calls from the judge to Kiplagat.

Githaiga: That is true.

Ngatia: Did you see any call from the judge to Kiplagat?

Githaiga: No calls.

The tribunal questioned four witnesses Monday. The investigator, Safaricom engineer Shaka Kwach, Kidero and businessman Kiprop Chirchir.

Mr Kwach told the tribunal that they kept records on calls and sms only for billing analysis but could not identify what a person is communicating to the other as they are encrypted.

He said that although a network could be used to trace the mobile phone, data in relations to time of call, duration of that call and the mast used could only be recorded and retrieved if there was communication between parties.

When Kidero took to the stand, he dismissed the bribery claims saying the claimed amount would only fit a tonne lorry.

The governor said he did not need to seek any help with the case between him and Kabete MP Ferdinand Waititu because he believed there was a high chance of success due to precedents set by the court on filing a case away from time limits.

Asked if he was disturbed about the allegations, Kidero said he had grown hard skin to outrageous claims since he gets them regularly as the Nairobi County boss.

Kidero: I did not need to ask for assistance. The case was clear that it was filed out of time. I did not need anybody’s help. On August 27, 2014 (alleged bribery date) I was at home in Muthaiga at 6:30pm.

On the other hand Mr Kiprop said he knew Kiplagat due to media interaction in 2009 but narrated that he was shocked that Tunoi’s accuser fixed him in the whole saga.

Mr Nyamodi will respond today to the application to drop the probe on account that JSC never followed the laid out process to conduct its investigations.

Ngatia, whilst making the application said it was not only humiliating for senior judges to be investigated by a magistrate (Ombudsman Kennedy Bidali) but it was disregard of the Constitution.

He said his client’s long streak in the Judiciary was destroyed by one orchestrated claim despite the judge going through the Aaron Ringera purge and the Judicial and Magistrates Vetting Board vetting with a clean bill of health about his conduct.

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