NIS disowns report used to recommend Tunoi probe

June 7, 2016 5:37 pm
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The report was hand delivered to the Ombudsman of the Judiciary and did not have a letterhead or even a signature/FILE
The report was hand delivered to the Ombudsman of the Judiciary and did not have a letterhead or even a signature/FILE

, NAIROBI, Kenya, June 7- The National Intelligence Service has disowned a report that was presented to the Judicial Service Commission prompting a probe into claims that Justice Phillip Tunoi received a Sh200mn bribe.

The report, which led to the adjournment of the tribunal probing Justice Tunoi last week, was heavily relied upon by the Judicial Service Commission (JSC) and led to the formation of the inquiry in a bid to ascertain the grave accusations levelled against the judge.

Overview
  • The report, which led to the adjournment of the tribunal last week, was heavily relied upon by the Judicial Service Commission (JSC) and led to the formation of the tribunal in a bid to ascertain the grave accusations levelled against the judge.
  • The tribunal’s lead counsel Paul Nyamodi was given time to seek permission from the NIS Director General for their communication with the tribunal to be de-classified so that Tunoi’s concerns can be addressed.
  • Having been permitted to share the content of the response from NIS on the alleged report, Nyamodi said the Director General was categorical that the, “undated and unsigned document did not originate from the service.”

The tribunal’s lead counsel Paul Nyamodi was given time to seek permission from the NIS Director General for their communication with the tribunal to be de-classified so that Tunoi’s concerns can be addressed.

Having been permitted to share the content of the response from NIS on the alleged report, Nyamodi said the Director General was categorical that the “undated and unsigned document did not originate from the service.”

The report was hand delivered to the Ombudsman of the Judiciary and did not have a letterhead or even a signature.

But Kennedy Bidali in his defence said he was “trying to get a signed document” but up to now he had not managed to do so.

Tunoi’s lawyer Fred Ngatia had questioned the authenticity of the report, which he said “a a matter of fact, throughout the JSC recommendation, this report features the collaborative part. Without it, it is only allegations flying from one person to the other.”

“On the basis that today, NIS has said this is not their document… my first application is that it should be expunged from your records; but expunging it from your record is not enough because it actually cut across the JSC proceedings,” lawyer Ngatia asserted.

“As I cross-examine the witness, I will be pointing out to where this document found its way in the hearing and in the recommendation.”

The now recanted NIS report contains information that suggested that Justice Tunoi and Geoffrey Kiplagat, his accuser, had meetings and phone conversations, details that led to the formation of the tribunal.

Bidali had ‘asked for the report’ from the National Intelligence Service, during the early stage of the probe at the Judiciary.

Lawyer Ngatia first focused on exposing the procedure that was used at the initial stage to probe Justice Tunoi.

Bidali was hard-pressed to explain how a probe against the judge was initiated and whether the Constitution was followed.

Ngatia revealed that he kicked off investigations after receiving Geoffrey Kiplagat sworn statement, from Chief Justice Willy Mutunga.

Ngatia insisted that the Constitution was violated, since the law requires such a probe to be started by either by the JSC or after a petition from an individual to the JSC, on the conduct of a judge.

“The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion or on a petition by any person to the Judicial Service Commission,” Ngatia asserted, while referring to the requirements of the Constitution.

As the Ombudsman, Bidali said he was only acting on the document (Kiplagat’s affidavit) given to him by the Chief Justice.

Bidali, who was at pains to explain the procedure, further admitted that he did not have a “written document from Kiplagat or from your boss to JSC demanding a process against Justice Tunoi.”

On this, lawyer Ngatia told him, “Why you don’t have either one or the other is because in the whole process you are a hatchet man, to the extent that there was no complaint against judge Tunoi. You got an affidavit from a different person and you used it as a complaint.”

Ngatia at one point accused him of using, “James Bond tactics” to get information from Kiplagat.

This was after Bidali admitted that he recorded Kiplagat for almost 48 minutes, but only notified him for two minutes and half.

It was during a meeting in Eldoret when the Ombudsman, in his capacity as the Judiciary investigator, met with Kiplagat in a bid to ascertain the allegations he had made in his affidavit.

The tribunal will resume sitting on Wednesday, with lawyer Ngatia expected to question Bidali on the source and author of the report that NIS has since disowned.

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