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Rogue judge: How cell phone technology was used to smoke out Chitembwe

 Justice Said Chitembwe at Milimani Law Courts on November 12,2021. [Collins Kweyu,Standard]

In The Comedy of Errors, Shakespeare says one must have a long spoon if they must eat with the devil.

In The Tempest, his last play, Shakespeare reiterates this truism when one of his characters Stephano stumbles upon a man on a lonesome island:

"Mercy! Mercy! This is a Devil... I will leave him, I have no long spoon," he screams.

Justice Said Juma Chitembwe did not use a long spoon when he decided to have dinner with the men and women who brought him down.

The technology availed to the tribunal probing his conduct not only located him at the dinner tables with those persons but also the kind of cutlery they were using. And they were not long.

At the centre of proving his dalliance with litigants before his court were three meetings held, not in a remote hideout or some island, but in his own homes in Diani and Nairobi.

The meetings centred around the parcel of land he held through a proxy and emanating from a succession case he had handled in Malindi while working as a judge.

They featured former Nairobi Governor Mike Sonko, the judge's proxy Amana Saidi Jirani, Nepal's Honorary Consul Jimmy Ibrahim Askar, Kwale widow Jane Kyengo, Sonko's aide Francis Kivuva and the judge himself.

In his testimony, the judge denied two of these meetings ever took place as alleged by Sonko and as corroborated by audio and video recordings produced at the proceedings. He conceded, albeit not directly, to one.

The first meeting allegedly took place on March 16 at his Mountain View Estate home in Nairobi, ahead of Sonko's High Court impeachment decision. Askar, the Consul who was interested in buying off the Kwale properties wanted to establish the Judge's interest in the land.

He claimed they first met at Sonko's Upperhill office before Jirani arranged a meeting at the Judge's home where he sanctioned the deal. Justice Chitembwe denied all these claims.

However, an expert witness identified as Weldon Siongok appeared before the tribunal and turned the tables on Judge. A telecommunications expert with Safaricom, Songok deployed the Safaricom Fraud Management system to the case and completely changed the game.

He testified that whenever a customer makes a call, sends a message, or conducts any activity on their network including receipt of calls, the system captures the cell tower serving the customer. The activity is then linked to the mobile switching centre at Safaricom headquarters.

A smartphone registers a bigger presence than a mulika mwizi owing to the varied applications running in the background and whose activities are captured in the respective cell towers, the expert explained.

He produced charts showing the cell towers which served all the parties to these meetings, identifying the towers which served them at a particular time.

On this particular day, March 16, the data analysed as emanating from the Judge's mobile activities of this day showed that he was "around Kangemi, Dam Village, Victoria Towers, Afya House among other sites. He was therefore deemed to have been "generally in Nairobi."

On the same day, Jirani was captured to have been in Coast, Diani areas as evidenced by the cell towers which served him. But he placed a call to the Judge. Askar, Sonko, and Kivuva were all in Nairobi on that date.

That day, Sonko and the Judge shared the Capitol Hill Towers mast in Nairobi, while the Parklands mast served Askar and the Judge at the same time. The judge and one of Sonko's aides, Kivuva, were jointly served by Hill Plaza cell tower on the same day.

After analysing the calls, and the locations of the cell towers which served them, the tribunal concluded that "there is evidence that shows the very high likelihood that it took place."

The second meeting was alleged to have taken place on May 22, 2021, at the Judge's Diani home. In the evidence tabled at the tribunal, Sonko shook off his company, leaving them at Manyatta Resort, and rode on a small Honda station wagon to meet the jwudge.

According to Sonko, the meeting took place before judgment on his impeachment case. He also claimed it is the judge who had called for the meeting claiming two of the judges handling it had accepted some money from the respondent and that Sonko was required to double the amount.

A witness testified that Sonko borrowed his car, and left them at the resort. The judge denied this meeting, insisting he had never hosted Sonko inside any of his homes.

According to the Judge, the closest Sonko came to him was a day he (the judge) was driving into one of his homes, and a man (Sonko) lowered his car windows. He also said he does not have a home in Diani "apart from some Mabati rental structures."

"Siongok noted that on May 22, the judge placed a call to Jirani at 19:05 hours which took 70 seconds while Jirani made two calls to the Judge at 13:59 and 18:22 hours. Sonko called Kivuva at 07:41 hours while Kivuva placed a call to Sonko about the same time," the report reads.

From his evidence, Sonko's several phone numbers were served in Kwale on that date by three different masts as were Jirani's. At one point on that day, Sonko's Safaricom number and the judge's one were served by Ukunda, Diani, Kwale post office, and Tsimba cell towers.

His other number and the judge's number were later served at the same time by Tsimba cell tower, meaning they were most likely together or around each other.

"He could not tell whether there was a specific meeting by the holders of the provided cell numbers and he could only observe that individuals were served by a particular mast. He clarified that a shared mast meant a person did an activity and a time stamp when that activity happened was captured," the tribunal report says.

On a circumstantial basis, the tribunal concluded that the two must have met around that area. This now brought to two the confirmed meetings of the pair.

"The Tribunal is satisfied that the meetings of March 16, 2021, and May 22, 2021, did indeed take place," the tribunal concluded.

The third meeting is a set of two meetings in one, held on July 9 and 10, 2021 at the Judge's Mountain View home between Sonko, Askar, Jirani, and the Judge.

On July 9, Siongok testified that Sonko, Askar, and Jirani were jointly served by the Geomaps Centre mast which is near Sonko's Upperhill office earlier in the day. On July 10th, they were united in service by Kangemi's Marenga tower, after being served by several other masts earlier in the day.

"He noted that on July 10, 2021, Askar and Sonko were both served by a cell tower named Kangemi Marenga at 19:00 hours and 10:30 hours respectively. He established that Kangemi Marenga tower was therefore the unifying factor for Askar and Sonko on that day," the report reads.

The expert testified that Mountain View Estate, which is the known residence of the judge, was served by among other masts, the Kangemi Marenga tower which united Askar and Sonko. He also confirmed that the phenomenon of two people sharing one tower meant that they were definitely in that vicinity or at the very least that their handsets were.

In his testimony, the Judge indirectly admits to the meeting but says it was "unnecessary and a scheme to entrap him" for having ruled against Sonko. He also claimed that this is the day he first learnt of the Kwale land transaction "when Sonko and Jirani visited him."

He testified that he came to know of the identity of the parcels on the second day (July 10) "since they did not have the title deeds during the first meeting." The fact that this particular meeting was visually and audial recorded did not help matters for the judge.

He admitted to saying certain things recorded in the video but complained it had been edited to omit other words.

The tribunal also rejected the Judge's claims of breach of privacy through the recordings arguing he lost out on that claim when he agreed to discuss the matters in public.

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