Clash as Justice Tunoi questions credibility of accuser

Justice Tunoi  wore a red tie and a dark blue suit, he carried a small file and his phone.

He would later at 11.05a.m fetch his two lawyers, Fred Ngatia and Pheroze Nowrojee, for the start of the session.

Justice Tunoi and his legal team tore into Kiplagat's affidavit, which implicated him, and attacked the complainant's credibility, according to sources privy to the proceedings.

Tunoi, who acknowledged that the journalist hailed from his home area and had in the last General Election contested for an elective post, questioned the motive of the affidavit, sworn on November 20, 2014, and only made public a week ago.

The only credible explanation, the lawyers argued, was that the document was authored with the sole intention of influencing the succession of the Chief Justice, and eliminating Tunoi from the race.

The judge was annoyed at the manner in which the Chief Justice had handled the issue, as he had not raised it with him. Instead, the CJ had opted to deal with other agencies, including the media, leaving the judge in the dark.

"This could only have been aimed at destroying the career of the long-serving judge ahead of the succession," his lawyers argued.

When the judge was personally invited to give his view, he termed the contents of the affidavit as "all lies" and left his legal team to tear apart its contents.

Retirement age

The committee was told that Manour Muathe Issa Advocates, a lawyer who was a tenant of a former JSC member, Ahmednasir Abdullahi, had prepared the Kiplagat affidavit. Ahmednasir has publicly stated that the judge should not be serving in the Judiciary as he had reached retirement age.

Tunoi said Ahmednasir was involved the CJ succession politics in the Judiciary and was determined to ensure he was kicked out of the service.

Tunoi said that although he was part of the Bench that heard the appeal by Kidero and took minimal part in plenary deliberations, he did not prepare the judgment. The draft judgment was prepared and circulated to him "in the normal manner and I indicated my approval on the draft", he said.

Tunoi said it was most prejudicial to permit publication of "such cheap fictional piece of imagination which is solely intended to achieve my removal from the Bench oblivious of the great damage to my character or the Judiciary".

The JSC panel also put to task the whistleblower and once again questioned the authenticity of the report said to have been authored by the National Intelligence Service (NIS).

They also questioned the judge's defence, which was contained in an affidavit sworn last Friday and which the judge and his legal team presented.

First off the blocks was Mr Kiplagat, whose story the panel heard.

Kiplagat avoided the media at the Supreme Court building, entering through a different door and leaving in the same way.

Credibility of accuser

Sources said his credibility was tested in the closed-door proceedings by the six-member panel.

Panel chairperson Prof Margaret Kobia said the team had for the past three days held closed-door meetings to examine documents presented by the whistleblower.

She said her team, appointed on January 27, 2016 to investigate the allegations against the Supreme Court judge, started work on the same day.

"The committee... has been reviewing key documents that are central to this inquiry and talking to various persons on the same. Today, the committee had a session with the complainant and (judge) Philip Tunoi who has been adversely mentioned in the alleged case of bribery," she told journalists.

Members of the Kobia team are Emily Ominde, Winnie Guchu, Aggrey Muchelule, Githu Muigai and Kipng'etich arap Korir Bett.

In his defence, Tunoi said the NIS report had only talked of five Supreme Court judges on the Kidero appeal, yet a full seven-judge Bench had handled the case.

Tunoi's affidavit was drawn by Ngatia and sworn before Mary Bonyo Advocates.

The Supreme Court judge has strongly denied the claims that he received Sh200 million bribe, terming them as pure lies.

The commission is expected to call Nairobi Governor Evans Kidero, lawyer Katwa Kigen, businessman Michael Njeru, Kidero's personal assistant John Osogo and business Kiprop Chirchir, all of whom have been mentioned in Kiplagat's storyline.

"The Committee will take the evidence of other persons who we believe may have information that may assist the committee reach an informed decision," said Kobia.