NAIROBI, Kenya, Jun 27 – The tribunal charged with determining the truth behind the allegation that Philip Tunoi took a Sh200 million bribe from Nairobi Governor Evans Kidero called its sittings to an end Monday.
In a unanimous decision, the Tribunal found that it would be illegal for it to continue collecting evidence on the matter following the reinstatement of the Court of Appeal finding that Tunoi should have ceased being a judge two years ago.
“It would serve no necessary purpose,” tribunal Chairman Sharad Rao said on account of the fact that the tribunal derived its powers from Article 168 of the Constitution on removal of a judge, of which Tunoi no longer is.
The tribunal would however, Rao said, present a report to its appointing authority – President Uhuru Kenyatta – based on the evidence already collected but would make no finding, “as the enquiry was not complete.”
The tribunal, he said, had yet to recall to the stand Tunoi’s accuser – former journalist Geoffrey Kiplagat – or hear from the judge himself.
Tunoi through lawyer Fred Ngatia did however successfully apply to “comment” on the evidence so far collected before the tribunal reports back to the President.
Through said comments, Tunoi sought to poke holes in the narrative of his accuser pointing out that at the time Kiplagat alleges the Sh200 million was exchanged at Petro Petrol Station along Waiyaki Way, Safaricom records show that he was at the Madaraka Estate, Tunoi in Kileleshwa and Kidero in Muthaiga.
He also sought to make the point that even if Kiplagat’s affidavit was to be taken at face value, he argued through advocate Ngatia, what he claimed to see was a brown briefcase exchange hands and not money.
“Nobody ever saw the money.” Ngatia submitted. “People saw a bag and a bag is not synonymous with a bag containing money.”
Tunoi’s defence throughout the life of the tribunal has been that the emergence of the affidavit, a year after it was sworn, was timed to force his retirement and lock him out of the race for Chief Justice and it was a point underscored by Ngatia on Monday.
“It is not for nothing that this affidavit came to surface one year after it was done when various events were set to take place. The judge was the senior most after the Chief Justice and Deputy Chief Justice. Now that all those matters have taken place, please allow this judge to now retire without the blemish of this accusation of impropriety.”
At the time the tribunal was constituted, Tunoi was already embroiled in a legal tussle with his employer, the Judicial Service Commission, over his retirement.
But given an agreement between parties to hold off on retirement pending the determination of an appeal, the tribunal went ahead to execute its functions.
On June 14 however, an order staying the Court of Appeal endorsement of the High Court finding that Tunoi should have retired on turning 70, was vacated and a notice of retirement served on Tunoi.
He fought it before the tribunal on the grounds that it was not legally binding given it came from the JSC and not the Judiciary.
But the tribunal found the question of who authored the retirement notice “irrelevant” and focused instead on what the Supreme Court ruling of June 14 meant for them.
Tunoi had appealed to the JSC to hold off on his retirement pending the conclusion of the tribunal’s enquiry into Kiplagat’s claim so as to accord him the opportunity to clear his name before exiting office.
But the JSC rejected his offer to retire as soon as the tribunal concluded its enquiry for the reason that it would be in contravention of the Constitution its members swore to uphold and which states a judge must vacate office at 70.