Probe on Justice Philip Tunoi bribery claims properly initiated, says tribunal

Justice Philip Tunoi (left) with his counsel Fred Ngatia during a tribunal hearing at Anniversary Towers, Nairobi, yesterday. The tribunal investigating Justice Philip Tunoi's conduct has maintained that the probe was properly initiated. (PHOTO: BEVERLYNE MUSILI/ STANDARD)

The tribunal investigating Justice Philip Tunoi's conduct has maintained that the probe was properly initiated.

Although the Sharad Rao-led tribunal blamed the Judicial Service Commission for not declaring the section of the law it was acting on, it ruled the commission acted on its own motion to probe the senior judge.

"To deal with Justice Tunoi's lawyer Fred Ngatia's submissions, we are of the view that the recommendation was initiated by JSC by its own motion, having investigated what it described as a complaint in the form of an affidavit," the ruling read by Justice Rao said.

It added: "It is unfortunate that a professional body such as JSC failed to clearly specify under what limb in regard to Article 168 it acted to make the said recommendations."

Mr Ngatia had on Monday told the tribunal to end the investigation, arguing that in making the recommendation for the probe, JSC had not done its own investigation but relied on one done by a Judiciary officer, Kennedy Bidali.

The tribunal also ruled it needed to hear the remaining witnesses and the judge, if he wanted to testify before it makes its final recommendation to President Uhuru Kenyatta.

"The tribunal is yet to hear the remaining evidence and is yet to hear from Justice Tunoi, if he chooses to. Without this, the tribunal cannot come to a conclusion. Whereas it is the right of a person to raise the issue of jurisdiction at any point, we would have expected him to do so at the commencement of these proceedings and not, as it were, towards the tail end of the proceedings," Rao said.

The tribunal's lead counsel Paul Nyamodi argued that JSC delegated powers to Mr Bidali and thus the process was properly initiated.

"Whereas Mr Bidali may have conducted certain initial investigations, JSC adopted his work either rightly or wrongly. I believe the correct position is that the process and the proceedings were being carried out under some agency or delegated authority by the Judicial Service Commission and they were the ones who indeed investigated the judge," he said.

Nyamodi said it was up to the tribunal to determine whether its scope included investigating the judge on communication misconduct, as it was allegedly omitted in the final recommendation.

He also argued that the tribunal ought to determine if Bidali's affidavit could qualify to be a petition filed before JSC.

There was, however, an agreement between Nyamodi and Mr Ngatia that JSC ought to have forwarded the petition by the person who complained about the judge without changing anything in it.

For that reason, Ngatia argued that the whole process was flawed and the probe could thus not be supported.

He said the President altered the recommendations he was forwarded to by JSC despite the Constitution limiting him. "The only recommendation by JSC is to inquire into bribery allegations against him," Ngatia said. The tribunal will issue final ruling today.